THE  LIBRARY 
OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


TRIAL  PRACTICE 

AND 

TRIAL  LAWYERS. 

A  TREATISE  OX 

TRIALS  OF  FACT  BEFORE  JURIES, 

INCLUDING 

SKETCHES    OF    ADVOCATES,    TURNING  POINTS,  INCIDENTS, 
RULES,    TACT    AND    ART   IN    WINNING    CASES.  CON- 
DENSED   SPEECHES,    A    BRIEF    SUMMARY  OF 
THE    LAW   OF   ACTIONS,    EVIDENCE, 
CONTRACTS,  CRIMES,  TORTS, 
MILES,    ETC.    ETC. 


BY   J.  W.  DONOVAN, 

Author  of  Modern  Jury  Trials,  etc. 


ST.  LOUIS.   MO.: 

WILLIAM    H.    STEVENSON, 

LAW  PUBLISHES  AND  PUBLISHER  OF  THE 

CENTRAL  LAW  JOURNAL. 
1  S  8  3. 


Copyright,  1883, 

BY 

J.  W.  Donovan. 

T 

yn\Wr 


St.  Louis,  Mo.:  Piinted  by  the  Central  Law  Journal. 


PREFACE. 


Twenty  questions  of  fact  to  one  of  law,  are  contested 
in  ordinary  trials.  Often  the  wrong  side  prevails  when 
adroitly  managed  by  a  keen,  clear  spoken  counsel, 
who  detects  the  weakness  of  witnesses  ;  aud  very  often 
has  the  faltering  story  of  a  timid  plaintiff  been  sus- 
tained and  strengthened  by  an  eloquent  illustration  in 
an  argument :  so  that  jury  trials  are  won  or  lost  by 
management. 

There  is  a  fine  art  in  practice,  that  comes  to  one  by 
experience,  to  another  by  a  series  of  blunders,  while 
others  learn  much  of  it  by  reading  and  observation. 
The  great  majority  will  never  know  it.  They  are  not 
willing  to  p$ty  the  price.  Many  victories  that  are  cred- 
ited to  counsel,  belong  equally  to  witnesses.  The  vivid 
story  of  a  single  witness,  told  in  a  winning  way,  will 
leave  an  impression  that  no  eloquence  can  remove. 
The  potter  has  no  more  power  over  the  clay,  than 
good  evidence  has  over  an  intelligent  jury. 

It  is  the  art  of  putting  tilings,  saying  things,  and 
doing  things  in  a  way  to  enforce  conviction,  that  this 
volume  relates   to.     It  is  made  up  of  turning  points, 


667011 


IV  PREFACE. 

sketches,  references  to  means  of  winning  cases  by  in- 
cidents and  illustrations,  drawn  from  the  varied  expe- 
rience of  advocates  in  different  sections  of  the  country, 
who  have  learned  and  mastered  the  science  of  stating 
facts  with  clearness. 

Success  in  practice  depends  so  much  upon  the  num- 
ber of  clients  that  one  can  make  himself  agreeable  to, 
that  the  art  of  gaining  business  like  that  shown  by 
Chief  Justice  Waite,  or  of  winning  verdicts  by  stories 
like  Judge  Holmes  employed,  and  that  made  Abraham 
Lincoln  successful,  as  well  as  President,  has  been  care- 
fully explained  in  numerous  chapters. 

The  experience  of  successful  men,  forms  the  foun- 
dation of  all  rules  of  practice,  sketches  and  incidents 
here  reported.  The  merest  mention  of  counsel  without 
some  illustration  of  their  methods,  consumes  but  a 
small  space  in  any  chapter  ;  but  wherever  a  name  can 
add  authority  to  a  rule  or  statement,  it  has  been  given. 
The  majority  of  lawyers  mentioned  are  known  to  the 
writer;  a  few  are  reported  from  others.  It  is  con- 
ceded by  all  whom  I  have  conversed  with  on  the  sub- 
ject, that  in  trials  of  fact  before  juries,  trifles  often 
turn  the  verdict,  and  men  can  learn  much  from  each 
other  on  turning  points  of  practice.  This  is  what  I 
have  attempted  to  show  in  these  pages.  And  as  for  the 
effect  of  eloquence  —  I  have  heard  Gen.  Butler  in  his 
powerful  Philippic  on  an  Indianapolis  editor,  when  hun- 


PREFACE .  V 

dreds  stood  upon  the  seats  and  shouted,  "Hit  him  again  ! 
Give  it  to  'im  !  !  (smiting  their  hands  together, J  Give 
it  to  'im  !  !"  until  I  realized  the  force  of  "fighting"  elo- 
quence.  I  have  heard  Gough  give  his  nineteen  rewards 
to  the  faithful,  looking  up  toward  the  heavens  with 
expanded  nerves,  and  eyes  dilated,  face  all  ablaze  with 
magnetism,  hands  charged  with  electricity,  and  tones 
tuned  with  the  finest  melody.  I  have  seen  Benjamin 
F.  Taylor  when  he  marched  the  forces  up  the  sides  of 
Lookout  Mountain,  and  pictured  the  battle  above  the 
clouds  with  lifelike  energy  —  pictured  it  so  graphically 
that  we  could  almost  hear  the  final  shout  of  victory 
that  shook  the  hills  of  Tennessee,  when  the  boys  in 
gray  retreated  from  the  boys  in  blue.  I  have  heard 
the  echoing  shout  receding  over  Cemetery  Hill,  caught 
up  by  Union  forces  and  carried  through  the  ranks  of 
the  entire  army  of  the  Cumberland  ;  I  saw  the  audi- 
ence sit  spell  bound  at  the  close,  dismissed  by  a  waive 
of  the  chairman's  hand,  so  touched  by  the  grandeur  of 
the  scene  that  they  marched  out  in  silence  from  College 
Chappel,  and  I  called  that  eloquence,  but  it  was  imag- 
inary. I  have  heard  Phillips  describe  the  conduct  of 
a  heroic  general  till  he  called  before  us  the  mighty 
dead,  like  Napoleon,  "Wellington  and  Alexander,  and 
"dipping  his  finger  in  the  sunlight,"  wrote  on  the 
blue  arch  of  Heaven  the  name  of  his  brilliant  hero,, 
and  I  was  thrilled  by  his  graphic  description,  and  even 


Vt  PREFACE. 

that  was  imaginary.  And  when  a  real  picture  came 
before  me  in  a  New  York  court  room,  and  Beach  was 
the  champion  of  a  discarded  wife  by  a  wealthy  husband, 
and  when  I  heard  him  rehearse  her  wrongs,  and  tell  her 
simple  story  to  a  jury,  and  listened  to  their  verdict  of 
heavy  damages,  I  knew,  and  felt,  and  realized  the 
power  and  force  of  eloquence,  and  thought  it  would  be 
instructive  to  repeat  it,  and  describe  it  as  a  lesson  to 
.advocates. 

J.  W.  D. 
Detroit,  July,  1883. 


INDEX. 


ABOUT  TRIALS,  62. 
ACTION,  3. 

ADROITNESS.  47. 
ADVOCATES.  246. 
ATKINSON,  303. 
ARGUMENT,  37. 
ARNOLD,  238. 
ASSUMPSIT,  194. 

B 

BEACH,  260. 
BLACKBURN,  295. 
BLACK,  296. 
BLACK,  W.  P.,  280. 
BLISS,  266. 
BOOTH  CASE,  175. 
BRADY,  4. 
BRADBURY.  - 
BREAUX.  292. 
BRIEF,  99. 
BROWNE,  308. 
BUTLER,  249. 


CAMPBELL.  294. 

CANDOR  AND  DIGNITY,  102, 

CARLISLE,  2* 

CARTER.  294. 


Vlll  INDEX. 

CARPENTER,   20. 

CHEEVER,  304. 

CHICAGO  BAR,   26S. 

CHIEF  JUSTICE  WA1TE,  41. 

CH1PMAX,  302. 

CIIOATE,  RUFUS,  253. 

CHOATE,  JOSEPH,  264. 

CINCINNATI    BAR,   282. 

CIRCUIT  COURT  PRACTICE,  142. 

CIRCUMSTANTIAL  EVIDENCE,  117. 

CONKLING,  249. 

CONTRACTS,  196. 

COURAGE  IN  COURT,  155. 

COR  WIN,  21. 

CRIMINAL  CASES. 

CRIMINAL  DEFENSES,  65. 

CRIMINAL  PROSECUTIONS,  63. 

CROSS-EXAMINATION,  70. 

CURTIS,   264. 

D 

DAMAGES,  197. 
DAVIDGE,    2S6. 
DEXTER,  268. 
DICKINSON,  15. 
DICKINSON,  DON.  M.,  303. 
DILLINGHAM,  16. 
DIVORCES,  172. 
DOOL1TTLE,    278. 
DOUGHERTY,  296. 


ELOQUENCE,  6. 
EVIDENCE,  198. 
EVABTS,   258. 


FIELD,   267. 
FINK  WORK,   71. 
FISHBACK,   235. 


INDEX.  IX 


FORCE,  56. 
■FOKGERY,   201. 
FRAUD.   199. 


GENERAL  AGENCY,   200. 
GENIUS,   84. 
GIVE  A  LITTLE,  152. 
GORDON.   30S. 
GREELEY'S  TREE.  99. 
GRTFFIN.  303. 


H 


HALE,   299. 

HANCHETT,   305. 

HARRIS,    295. 

HARRIS,  OF  ALBANY,   29S. 

HARRIS,   IRA,   299. 

HARRISON,   307. 

HARRISON,    234. 

HENDRICKS,   305. 

HIS  FIRST  CASE,   119. 

HOADLY,   282. 

HOMICIDE,   201. 

HOWE,   292. 

HUMAN  NATURE,   31. 


INDIANAPOLIS  BAR,   305. 

INGERSOLL,  236-2S8. 

IN  THE  PROCESSION,   232. 


JOHNSON,   283. 
JUSTICE  CASES,   132. 
JUSTICE  STORY,  A,  140. 

K 

KIRCHNER,   221. 

(6) 


INDEX 


LARNED,  302. 
LAWYERS'  ADVICE,   37. 
LAWYERS  NOT  ON  TRIAL,   60. 
LETTER  WITNESSES,  130. 
LIKES  AND  DISLIKES,  136. 
LINCOLN,   19,   250. 
LINCOLN,   ROBERT  T.,  271. 
LINCOLN,  T.  D.,  2S3. 
LOTHROP,   302. 

M 

MacLEAN-SCRIPP  LIBEL  CASE,   221. 

Mcdonald.  307. 

McSWEENEY,   2S4. 

MANAGING    CASES,   37. 

MARSHALL  AND  CRITTENDEN,   9, 

MARSTON,   302. 

MAXIMS,   173. 

MAY   ON  LINCOLN,   250. 

MEMORY  OF  LIVES,   312. 

MERRICK,   287. 

MICHIGAN  BAR,   302. 

MILLS,   273. 

MISER'S  HAND,   310. 

MISTAKEN  IDENTITY,   219. 

MUNN,   280. 

MUNN  IN  CLARK  MURDER  CASE,    241. 

0 

O'CONNOR,    257. 

ON  HIS  MERITS,  109. 

ONE  OPINION,  96. 

ONLY  ONE  WITNESS,  230. 

ORATORS   AND   ORATORY,  210. 

ORDER  OP  TRIALS,   165. 

ORDER  IN'  OK  KICK.   25. 

P 
PARTNERSHIP,  205; 
PECKHAM,   298. 


INDEX.  XI 


PECULIAR   ADVOCATES,   15. 
PERSONAL  PROPERTY,    206. 
PHILADELPHIA  LAWYERS,   295. 
POND,   304. 

PORTLAND  BAR,   299. 
PORTER.   259. 
PREPARING  TRIALS,   23. 

R 

REMEMBER  LITTLE  THINGS,   1G0. 
RESERVE  FORCE,   58. 
RIGHTS   AND   REMEDIES,   193. 
RUSSELL,  304. 
RYAN,   13. 
RYAN,  ISO. 


SEMMES.  291. 

SEPARATING  WITNESSES,   43. 

SEWARD,   11. 

SHARP   PRACTICE,   112. 

SHAFFER,   261. 

SHIPMAN,   228. 

SHORT   SAYINGS,   169. 

SOLDIER'S  VERDICT,   157. 

SOUTHERN  BAR,   289. 

SOUTHERN  LAWYERS,   293. 

SPECIAL  VERDICTS,   83. 

STANSBURY,  IS. 

STATING  CASES,  34. 

STORRS,   270. 

STRANGE  DEFENSES,   147. 

STRANGE  SUCCESS,   168. 

STROUT.   300. 

STYLE   OF   SPEAKING,   244. 

SWETT,   LEONARD,  271. 


TACT  AND   SKILL,   45. 

TAKING  WRONG  POSITIONS,   79. 


Xll  INDEX. 

TALKING  TOO  MUCH,   10G. 
TEN  TRIAL  RULES,   29. 
TENDER   AND  TROVER,   20S. 
TOTTEN,  2S7. 
TREMAIN,  11. 
TRIAL  ELOQUENCE,   234. 
TRIAL  LAWYERS,   1. 
TRIFLES  THAT  TELL,   81. 
TURNING  POINTS,   68. 
TURNING  VERDICTS,   113. 


VALLANDIGHAM,   17. 
VAN  ARMAN,   2G9. 

W 

WAITE'S   START  IN  LAW,  41, 
WASHINGTON  BAR,   2SG. 
WEBSTER  AND   CHOATE,   248. 
WEBSTER.   254. 
WESTERN   JUSTICE,   135. 
WHEN  TO  STOP,   158. 
WILLS,   208. 
WINNING  CASES,   54. 


TRIAL    PRACTICE. 


CHAPTER  I, 


TRIAL    LAWYERS. 
THEIR  ART,  MANNERS,   SKILL,  AND  ELOQUENCE. 

Trial  lawyers,  commonly  called  advocates,  generally 
show  a  natural  genius  in  lawsuits  very  early  in  practice,, 
whether  vivid,  graphic,  powerful,  or  eloquent  speakers, 
their  first  efforts  reveal  their  style,  and  future  pros- 
pects of  success.  A  real  advocate  is  a  genius  ;  he  may- 
be an  excellent  trial  lawyer  with  but  very  few  of  the 
graces  of  an  orator,  but  he  can  never  become  a  reat 
advocate  without  natural  faculties,  warm  sympathies, 
keen  knowledge  of  human  nature. 

The  skill,  art,  character  and  arrangement  of  speeches 
give  them  force  and  effectiveness.  Gifted  speakers 
are  rhetorical  and  logical  by  nature  ;  their  words  flow 
spontaneously  and  apply  to  the  subject  and  the  hearer 
with  very  little  effort  in  selection.  But  the  greatest 
advocates  have  added  to  nature's  rare  gifts,  the  polish 
of  learning  and  acumen,  anecdotes  and  illustrations, 


2  TRIAL    PRACTICE. 

with  a  wealth  of  excellent  quotations  to  clothe  and 
adorn  their  arguments. 

Good  arguments  are  not  made  by  accident — occa- 
sional bursts  of  eloquence  may  come  without  fore- 
thought, but  speakers  like  Clay  and  Everett  relied 
upon  careful  study  and  thoroughness  of  research,  and 
so,  in  the  history  of  American  advocates,  the  leaders, 
the  trial  lawyers  of  power  and  influence,  have  been 
naturally  gifted  and  highly  cultivated  ;  their  arts  of 
practice  are  full  of  interest  and  instruction  to  all  who 
follow  similar  callings. 

Within  the  era  of  thirty  years,  and  especially  since 
the  American  conflict,  a  greater  variety  of  subjects 
have  been  argued  to  juries,  and,  on  the  whole,  a  better 
line  of  arguments  have  been  made  than  the  average  of 
any  previous  years  in  America.  True,  in  England, 
there  have  lived  but  one  Erskine  and  one  Burke,  in 
Ireland,  but  one  O'Connel  and  one  Cumin,  and  in 
America,  a  single  Webster,  a  single  Choate,  but  one 
O'Connor  and  another  Prentiss,  whose  places  are  never 
tilled  by  recent  rivals,  but,  in  the  main,  a  succession  of 
brilliant  men  have  brightened  the  pathway  of  modern 
trials  with  excellent  examples  of  wit,  humor,  sagacity, 
and  effective  eloquence. 

With  the  examples  of  success  in  the  practice  of  the 
advocates  mentioned,  the  world  is  already  familiar. 
They  were  like  sun-light  to  their  brethren,  and  need 
neither  comment  nor  coloring  to  enhance  their  brill- 
iancy. But  there  arc  others,  more  modern  and  less 
understood,  that  seem  a  closer  connecting  link  with 
our  generation,  whose  career  it  is  well  to  remember, 
and  whose  well-won  victories  will  form  a  part  of  the 


ACTION.  3 

Trial  Practice,  discussed  in  this  volume.  As  all  trials 
are  presumed  to  be  managed  by  advocates  as  much  as 
plays  are  dependent  upon  their  chief  actors,  it  may  be 
well  to  glance  occasionally  at  some  of  the  past  leaders 
of  the  American  bar,  who  have  been  head-lights  to 
their  followers,  and  may  remain  so  for  generations. 
To  this  end,  I  will  assume  to  mention  whatever  is 
instructive  in  the  career  of  men  in  different  States, 
believing  that  an  actual  example  will  be  more  effective 
than  mere  theories  of  practice. 

ACTION. 

When  a  great  master  said  that  the  first,  second,  and 
third  requisite  of  oratory  consisted  in  action,  he  evi- 
dently knew  that  the  action  of  an  orator  was  better 
understood  than  their  average  speeches.  The  dumb 
brute  can  detect  his  master's  look  of  pleasure  or  un- 
kindness.  The  child  can  comprehend  a  motion  and 
a  gesture,  and  of  all  things  clear,  the  simplest  and 
clearest  are  looks  and  actions  combined.  The  native 
Indians  and  frontier  foreigners  use  limited  words  and 
"  wink  with  their  hands,"  as  the  Germans  say,  to  con- 
vey their  meaning.  It  is  not  strange  that  men  are 
muddled  on  a  jury,  when  even  court  and  counsel  often 
find  it  difficult  to  settle  a  legal  controversy. 

Actions  attract  more  attention  than  words.  The  eye 
is  wiser  than  the  ear  and  wiser  than  the  head.  It  is 
never  satisfied  with  seeing.  The  curious  motion  that 
reveals  some  new  plan  of  argument,  is  sure  to  be 
noticed,  especially  if  graceful  and  appropriate.  Be- 
sides, gestures  are  always  original  :  they  can  never  be 


4  TRIAL   PRACTICE. 

studied  ;  therefore,  they  are  newly  born  in  view  of  a 
jury.  To  secure  such  attention  as  to  make  an  audience 
follow  with  their  eyes  the  upward  and  onward  gestures, 
is  to  be  eloquent.  Actions  are  eloquent,  often  pathetic 
or  strong  and  determined,  or  faltering  and  courageous 
or  even  weak.  They  reveal  emotions,  and  express 
truth  or  dishonesty.  Often  has  a  pause  like  that  of 
Patrick  Henry,  in  the  midst  of  his  greatest  of  speeches, 
been  more  effective  than  twenty  sentences:  "and 
George  the  Third," — "  may  profit  by  their  example." 
The  power  of  Judge  Ryan's  arguments  consisted  in 
his  command  of  excellent  English  and  force  in  gesture. 

©  © 

Webster's  remarks  of  Bunker  Hill  Monument,  "  let 
it  rise,  let  it  rise,  till  it  meet  the  sun  in  his  coming," 
must  have  been  majestic  in  sight  of  a  vast  concourse 
to  see  him  rear  the  $>;reat  ligure  in  the  air  before  his 

©  © 

hearers.  If  the  jury  can  read  from  a  counsel's  actions, 
they  may  read  from  a  witness  and  a  client,  and  the 
case  is  often  won  or  lost  by  the  straight-forward 
actions  of  the  witnesses  and  parties,  to  say  nothing  of 
counsel's  candor. 

Jilt  AD  Y. 

James  T.  Brady  was,  next  to  John  Van  Buren,  the 
greatest  criminal  lawyer  of  New  York  City.  A  born 
genius,  equipped  with  a  line  form,  size,  voice,  and  en- 
gaging manner,  brimfull  of  wit,  humor,  anecdote, 
knowledge  of  human  nature,  pathos,  and  an  attractive 
delivery. 

His  speeches  were  bristling  with  points  from  end  to 
end.  He  was  fertile  in  resources,  ready  in  debate, 
tolerably    well   versed  in  law,  highly  rhetorical,    and 


BRADY. 


•generally  eloquent.  Mr.  Brady  was  a  great  after-din- 
ner speaker.  Like  Tom.  Corwin,  his  natural  tendency 
was  toward  wit,  but  his  brilliant  imagination  never  ran 
lono-  in  one  sfroove.  Engaged  in  the  Sickles-Key 
cases,  the  Cole-Hiscock  trial,  and  many  more  of  great 
prominence,  he  became  known  as  a  great  criminal  law- 
yer more  than  a  general  counsel.  He  had  pleasing  and 
expressive  eyes  ;  a  warm,  cleanly-shaven  face,  curly 
hair,  and  small  mustache,  and  seemed  very  young  ;  in 
fact,  he  died  in  his  early  prime,  but  gained  the  reputa- 
tion of  a  master  advocate. 

The  efforts  of  Mr.  Brady  throughout  the  Empire 
State  were  ever  pungent  and  powerful,  thrilling  in 
interest  and  extremely  touching  in  many  passages. 
His  keen  ingenuity  and  mastery  of  human  passions 
was  a  marvel  to  the  bar,  and  an  entertainment  to  every 
jury  before  whom  he  appeared  as  counsel.  He  had 
piercing  eyes,  and  attractive  manner,  and  won  by 
strange  resources  that  seemed  always  his  own.  He 
was  admired  for  his  wit,  and  loved  for  his  generous 
nature.  His  appeal  to  the  court  in  defense  of  General 
Sickles,  in  Washington,  will  never  be  forgotten  by 
any  who  were  fortunate  enough  to  be  in  hearing  when 
he  pictured  the  father's  first  meeting  with  his  child 
after  hearing  of  his  wife's  dishonor.  The  statement 
of  Mr.  Brady  was  so  vivid  and  life-like,  that  General 
Sickles  was  completely  overcome,  and  argument  was 
suspended  till  he  could  be  removed  from  the  court- 
room. Seeing  its  effect,  Mr.  Brady  rested  without  a 
word  to  the  jury,  and  won  easily.  He  died  young  in 
years,  but  ripe  in  honor  as  an  advocate.  I  cannot  re- 
frain from  adding  a  brief  passage  of  his 


TRIAL    PRACTICE. 


ELOQUENCE. 


In  closing,  Mr.  Brady  said  : 

"  He  seemed,"  said  this  distinguished  witness,  his- 
own  heart  filling  up  and  overflowing,  as  he  recalled  the 
scene  ;  "  he  seemed  particularly  to  dwell  on  the  dis- 
grace brought  upon  his  child."  These  words  set  free 
the  tempest  that  had  so  long  been  pent  up.  As  they 
fell  from  the  lips  of  Robert  J.  Walker  there  occurred- 
here  in  this  very  court  a  scene  which  from  the  memo- 
ries of  those  who  witnessed  it  never  will  be,  never  can 
be,  blotted  out.  All  eyes  were  turned  to  the  dock  ; 
every  eye  was  eager,  fixed,  dilated,  quivering;  audi 
there  was  he,  he  who  from  the  first  hour  of  imprison- 
ment down  to  the  utterance  of  those  words,  had  borne- 
himself  with  heroic  calmness,  suddenly  overcome  and 
racked  with  relentless  grief,  stricken  down  as  though 
he  were  himself  the  motherless  and  houseless  child  for 
whom  he  wept,  smitten  to  the  quick  and  beaten  to  the 
dust ;  drenched  in  the  gall  and  wormwood  of  a  tribu- 
lation, the  depth  of  which  no  mortal  hand  can  sound, 
and  over  the  subsiding  flood  of  which  no  arch  of  peace 
can  ever  shine.  There  was  he,  the  avenger  of  the  in- 
vaded household  of  the  more-than-inurdered  wife,  of 
the  more-than-orphaned  little  one  ;  there  was  he,  in  an 
appalling  moment  of  parental  agony,  subdued  at  last. 
Talk  of  the  mind  diseased  —  talk  of  the  circumstances 
that  unhinge,  upset,  and  madden  it  —  talk  of  the  dis- 
traction into  which  a  ruthless  perfidy  had  plunged  my 
client  and  my  friend  —  talk  of  his  condition  of  irre- 
sponsibility when  he  dealt  the  fatal  blow  —  talk  of  this* 
and  with  your  worrying  interrogations  strive  to  elicit 


ELOQUENCE.  .  7 

the  recollection  of  it  from  those  who,  themselves  the 
witnesses  of  it,  who  were  themselves  agitated  as  they 
never  were  before.  Nature,  heaven,  God  himself,  in 
his  heart-broken  image  here,  became  here,  in  this  very 
court,  the  witness  of  the  torture  by  which  on  that 
terrible  day,  the  27th  of  February,  the  prisoner  was 
inflamed. 

"  You  beheld  the  scene  of  the  12th  of  April.  It  was 
the  same  as  that  to  which  Robert  J.  Walker  testified. 
Recall  this  scene.  Think  of  how  the  proceedings  of 
this  court  were  suddenly  arrested  by  the  sobs  of  the 
prisoner  when  the  beautiful  image  of  his  poor  child 
was  revived  by  the  words  of  Robert  J.  Walker ;  how 
he  was  bowed  to  the  earth,  and  how  he  writhed  as 
though  an  arrow  were  buried  in  his  heart ;  how,  sup- 
ported by  his  friend,  he  was  led  from  this  court,  his 
vision  quenched  in  scalding  tears,  his  limbs  paralyzed, 
his  forehead  throbbing  as  though  it  had  been  bludg- 
eoned by  some  ruffian,  and  his  whole  frame  convulsed. 
Recall  this  scene.  Think  of  this  ;  think  of  the  tears 
vou  yourselves  shed  as  this  stricken  victim  was  borne 
by  —  think  of  this  —  and  then  may  we  well  say  to  the 
jury:  if  your  love  of  home  will  suffer  it,  if  your  gen- 
uine sense  of  justice  will  consent  to  it,  if  your  pride  of 
manhood  will  stoop  to  it,  if  your  instinctive  perception 
of  right  and  wrong  will  sanction  it,  stamp  murder 
upon  the  bursting  forehead  that  has  been  transpierced 
with  the  thorns  of  an  affliction  which  transcends  all 
other  visitations;  and  for  the  scandal,  the  dishonor, 
the  profanation,  and,  in  the  end,  the  devastation  which 
provoked  this  terrible  outburst,  this  tempest  of  grief, 
this  agony  of  despair,  as  Robert  J.  Walker  described 


8  TRIAL    PRACTICE. 

it ;  for  this  incalculable  wrong,  I  say,  and  for  this  ir 
reparable  loss,  declared  by  a  verdict  for  the  prosecu- 
tion that  so  many  thousand  dollars,  an  appropriation 
from  an  economic  or  swept  right  off  from  a  lavish 
jury,  can  afford  a  soothing  compensation.  Do  this  ; 
do  it  if  you  can,  and  then,  having  consigned  the  pris- 
oner to  the  scaffold,  return  to  your  homes,  and  there, 
within  those  endangered  sanctuaries,  following  your 
ignoble  verdict,  set  to  and  teach  your  imperiled  wives 
a  lesson  in  the  vulgar  arithmetic  of  a  compromising 
morality,  and  let  them  be  inspired  with  a  sense  of 
womanly  dignity  by  a  knowledge  of  the  value  you  at- 
tach to  the  sanctity  of  the  household,  to  the  inviolabil- 
ity of  the  wife,  to  the  security  of  the  hospitable  roof, 
and  last  of  all,  but  above  all,  to  the  inherited  tradition 
of  an  innocent,  but  ruined,  offspring." 

STANTON. 

Edwin  M.  Stanton,  the  companion  of  Brady,  and 
great  war  secretary,  was  no  less  artful  and  logical,  and 
often  more  powerful  in  debate,  but  opposite  in  build, 
manner  and  plan  of  advocacy.  He  won  his  cases  more 
by  adroitness  of  management  and  soundness  of  reason, 
than  by  pathos  or  appeals  to  passion.  He  was  the 
associate  of  .Mr.  Brady  in  the  Sickles  trial,  and  ably 
did  his  work,  fully  consenting  to  drop  the  defense 
after  the  court-scene  already  described,  as  a  wiser 
measure  than  further  argument.  He  was  large,  tall, 
and  dignified,  and  never  forgot  the  gravity  of  an'advo- 
cate's  high  calling.  His  manner  was  impressive  and  his 
methods  ingenious.     In  a  famous  trial  near  Cleveland, 


MARSHALL  AND  CRITTENDEN.  !> 

before  the  war,  he  was  given  a  $1,000  retainer  to  save 
a  young  man  from  the  gallows,  who  had  stabbed  a 
rival  in  a  ball-room,  after  having  threatened  in  the 
hearing  of  companions  to  do  so,  with  only  jealousy  for 
a  motive.  Mr.  Stanton's  management  of  this  de- 
fense was  masterly.  Reaching  the  county-seat,  he 
early  learned  that  public  sentiment  was  deeply  aroused, 
and  still  a  few  were  opposed  to  hanging  in  general. 
He  was  cool  and  quiet,  said  not  a  word,  and  noted  the 
evidence  carefully.  He  was  opposed  by  the  eloquent 
statesman  and  lawyer,  John  A.  Bingham,  and  knew  too 
well  Bingham's  power  with  the  jury.  The  junior 
advocate  concluded  a  short  address  for  the  people,  and 
referred  to  his  associates  who  should  follow.  Silence 
became  intense.  The  court  room  was  packed  with 
listeners.  "Proceed,  Mr.  Stanton,"  said  the  court, 
gravely,  and  a  ruhHe  went  round  as  the  strong  man 
arose  and  said  in  measured  tones,  "  I  have  no  remarks 
to  add,  your  Honor."  Bingham  was  white  with  rage. 
This  cut  him  off  entirely.  He  tore  his  notes  in  shreds, 
muttering  imprecations  at  Stanton's  trick.  Deep  dis- 
appointment followed.  The  case  was  duller  now  ;  the 
jury  said,  "  Murder  in  the  second  degree,"  and  saved 
the  young  man's  life.     But  this  was  Stanton's  sagacity. 

MARSHALL  AND  CRITTENDEN 

Were  another  pair  of  brilliant  Kentucky  advocates, 
■within  this  range  and  period,  who  stamped  their  char- 
acters on  the  Southern  bar,  as  lasting  monuments  of 
fame  and  forensic  eloquence.  They  were  quite  unlike 
in  build  and  language,  yet  greatl}T  similar  in  their  man- 


10  TRIAL    PRACTICE. 

agement  of  cases.  Tom.  Marshall  was  tall,  slim,  a 
Henry  Clay  build,  and  sparkled  with  wit  and  repartee 
in  jury  trials  for  years  ;  at  times  grave,  severe,  chaste  ;. 
always  original  and  effective  ;  in  manner  somewhat  ex- 
centric  ;  a  full  master  of  human  nature  ;  trained  and 
cultivated,  but  born  eloquent.  His  speech  in  the  Matt 
Ward  case  is  a  model  of  rare  passages. 

He  never  met  the  fullness  of  success  in  political  life 
that  came  to  his  associate  in  the  Ward  trial  mentioned, 
but  it  was  difficult  to  say  which  one,  Tom.  Marshall  or 
John  J.  Crittenden,  moved  the  jury  most  or  best  pleased- 
the  audience.  Mr.  Crittenden  was  a  refined,  though 
bold  speaker.  His  dignity  as  a  senator,  governor,  and 
statesman  followed  him  in  trials,  with  signal  effect,, 
everywhere.  But  he  never  rested  on  such  resources. 
He  was  well-read,  and  persuasiveness  seemed  his  art  of 
winning  juries.  The  candor,  high  sense  of  honor,  rare 
knowledge  of  men,  firmness,  and  courtly  bearing  did 
much  to  enforce  attention.  He  had  a  fine  presence, 
rich  voice,  modulated  like  sweet  music.  He  was  clever 
and  candid,  and  brought  tears  to  his  hearers  by  a  beau- 
tiful quotation  read  from  a  German  author,  where 
justice,  truth  and  mercy,  came  and  pleaded  with  the 
creator,  saying  (of  man's  creation)  :  "  Make  him  not, 
father :  he  will  defile  thy  temple  ;  make  him  not :  he 
will  trample  on  thy  law:"  and,  finally,  mercy  kneels 
and  says  :  "  Oh,  make  him,  Father,  and  I  will  follow 
him,  and  at  last  bring  him  back  to  thee."  From  this 
beautiful  selection  Crittenden  will  be  remembered  long 
after  his  statesmanship  is  forgotten.  It  is  known  as 
Cov.  Crittenden's  allegory.  He  and  the  genial  Tom. 
Marshall  are  gone,  but  their  eloquence  is  not  forgotten. 


SEWARD TREMAIX.  11' 


SEWARD. 


The  genius  of  William  H.  Seward  as  advocate,  is  not 
easily  overestimated.  A  man  of  small  mold,  neither 
large  nor  commanding,  but  intensely  original  and  bold 
in  his  thought  and  action,  he  needed  no  counsel  and 
preferred  to  try  his  case  alone  from  the  beginning. 
His  sentences  were  measured,  but  pithy  and  full  of 
logic.  His  art  was  work  with  a  system  well  directed. 
He  was  ripe  in  learning,  courageous  in  the  belief  of 
victory,  and  zealous  in  all  his  undertakings.  In  speak- 
ing, he  seemed  to  grow  taller  and  larger,  and  expand 
with  his  theme  to  a  force  hardly  looked  for  in  a  man 
of  his  proportions  ;  more  a  statesman  than  orator,  yet 
once  enlisted  for  a  client,  his  efforts  never  flagged  till 
victory  relieved  him  of  his  burden. 

It  is  believed  that  his  conscience  prompted  his  action 
as  an  advocate  more  than  his  retainers.  Possessed  of 
means  and  a  large  clientage,  he  could  command  any 
amount  of  ideal  cases  in  which  to  exert  his  eloquence,, 
but  the  poor  and  rich,  friendless  and  influential,  re- 
ceived alike  his  best  legal  services.  Like  Lincoln,  his 
great  and  successful  rival  for  the  presidency,  he  had  a 
heart  that  beat  for  all  humanity,  and  slighted  no  one 
who  commanded  his  talents.  Unlike  Lincoln,  he  was 
elaborate  in  his  efforts  before  juries  and  clothed  his 
language  in  the  flowers  of  classically-quoted  learning. 

TREMAIX. 

Lyman  Tremain  was  another  of  New  York's  great 
advocates,  whose  wit  and  logic,  eloquence  and  skill,, 
will  long  remain  in  the  minds  of  his  juries  and  clients^ 


12  TRIAL    PRACTICE. 

Tall  and  commanding  in  person,  grave  and  determined 
in  manner,  powerful  and  sublime  in  reasoning,  he  em- 
bodied all  of  the  rare  requisites  of  a  master  advocate. 
He  cut  his  arguments  as  if  out  of  solid  marble,  first 
rude,  then  shapely,  then  polished.  His  thoughts  were 
inspired  by  great  events.  His  dark  complexion  and 
Websterian  manner  needed  an  occasion  to  stir  his 
nature  to  its  real  depths.  He  struggled  with  his  juries 
like  an  athlete  in  an  arena,  trying  first  one  means,  then 
another,  to  meet  and  overcome  their  opinions.  He 
was  an  ideal  advocate  in  this.  That  he  mastered  the 
law  and  facts  fully  and  presented  both  thoroughly,  and 
yet  his  style  was  individual.  He  had  but  little  of  the 
pathetic,  and,  unlike  Brady  and  Marshall,  he  needed 
thorough  preparation  and  great  trials  to  draw  his  fire, 
as  soldiers  express  it.  In  his  defense  of  Stokes,  that 
is  a  monument  to  any  advocate,  he  based  his  argument 
equally  on  four  grounds :  self-defense,  poisoning, 
probing  and  insanity.  All  ably  sustained  and  elo- 
quently urged.  His  effort  was  his  last  of  capital  de- 
fenses. Before  this,  he  had  often  appeared  for  the 
people.  Not  a  statesman,  he  goes  into  history  purely 
as  a  great  advocate,  and  ;t  ripe  counselor. 

RYAN. 

Ryan  and  Carpenter,  long  the  great  rival  advocates 
of  Wisconsin,  attained  national  eminence  during  the 
war.  Of  opposite  dispositions,  but  natural  genius, 
they  reached  the  summit  of  fame  in  jury  cases  in  their 
native  State  before  Mr.  Carpenter  became  the  brilliant 
senator  of  the  West,  and  Judge  Ryan  adorned  an  lion- 


RYAN.  13 

ored  seat  on  his  State  Supreme  Court  bench  at  Madi- 
son. Both  men  were  learned.  Judge  "Ryan  believed 
that  every  word  in  our  language  had  an  appropriate 
meaning,  and  sought  through  varied  dictionaries  to 
search  it  out.  Every  faculty  great,  every  passion  in- 
tense, every  undertaking  mastered,  but  himself  he 
could  never  rule.  Erratic,  high-tempered,  and  easily 
nettled,  his  career  was  somewhat  marred  by  his  bursts 
of  anger  and  lack  of  genial  bearing.  Born  a  genius, 
like  Webster,  his  politics  differed  from  the  average 
sentiment  of  his  State,  and  no  open  opportunity  ever 
led  him  to  national  eminence,  like  his  competitor,  the 
genial  Matt  Carpenter,  whose  career  was  so  busy  that 
he  even  declared  he  never  had  time  for  society.  Judge 
Ryan  made  a  study  of  the  reason  of  things.  The 
happy  harmony  of  his  sentences  is  noticeable  in  all  his 
speeches.  He  revelled  in  the  style  of  Addison  and 
Burke.  Even  in  his  intensest  anger,  he  was  sublime 
in  expressions  :  full,  ready  and  exact,  without  fear,  and 
with  distinguished  ability,  never  popular.  He  feared 
no  man's  argument  when  he  was  grounded  in  the  right. 
At  the  bar  he  was  a  giant  that  crushed  all  little  ob- 
stacles. His  size  was  not  unlike  AVebster's,  with  a 
warmer  and  more  impulsive  nature.  In  Webster's 
seat,  at  Washington,  who  knows  what  a  name  he  may 
have  carved  in  history.  Surely  in  a  court  room  he 
never  would  have  feared  the  greatest  of  New  England's 
advocates.  It  was  largely  his  location  and  lack  of  a 
field  for  fame,  that  robbed  him  of  glory  and  renown. 
He  had  read  and  mastered  languages.  He  could  rea- 
son  with  the  greatest.  He  lacked  no  art  of  eloquence,, 
neither  from  fire,  fervor,  nor  beauty   of  modulation,. 


14  TRIAL    PRACTICE. 

and  yet  he  passes  into  history  as  a  great  judge,  and  his 
speeches  are  rarely  seen  in  print.  As  high  as  $50  a 
copy  has  been  offered  for  Kyan's  speeches.  His  lan- 
guage was  always  fine  and  forcible,  and  often  eloquent 
and  beautiful.  His  feelings  were  strong  and  temper- 
ament ardent ;  his  manner  earnest,  often  vehement  and 
denunciatory.  His  power  of  sarcasm  uneqalled.  He 
abounded  in  metaphors.  His  figures  were  brilliant. 
His  replies  salient.  His  appeals  all  powerful,  persua- 
sive, and  convincing.  America  has  not  produced  an 
advocate  with  greater  command  of  language.  And 
from  this  we  learn  the  value  of  urbanity. 


DICKINSON". 


15 


CHAPTER  II. 


PECULIAR  ADVOCATES. 


Daniel  S.  Dickinson,  of  Binghampton, N.  Y.,  was  a 

senilis  in  oratory,  and  a  rare  advocate.  To  have 
"  Dan  "  Dickinson  was  almost  a  victory  from  the  hrst. 
His  first  case  was  tried  about  1384,  when  he  drove  a 
one-horse  wagon  into  Binghampton,  himself  bare- 
footed and  ragged,  with  his  worldly  goods,  his  wife 
and  child,  and  little  or  no  means  to  provide  a  living. 
It  happened  the  same  day  that  a  suit  was  set  for  trial 
at  the  hotel  where  he  was  stopping  for  dinner,  and  a 
banker,  seeing  his  bright  look  and  poor  apparel,  en- 
o-ao-ed  to  pay  him  a  small  sum  to  help  in  the  case, 
which  he  did  cheerfully.  It  was  arranged  that  he 
should  close,  and  so  great  was  the  expectation  to  hear 
a  barefooted  lawyer  speak,  that  men  left  their  shops, 
children  ran  away  from  school  at  recess,  and  even  the 
banker  had  a  seat  within  the  railing.  Dickinson  never 
made  a  better  effort  to  reach  a  jury.  He  was  young, 
impulsive,  full  of  cmotations  and  warm  argument.  He 
talked  directly  to  each  juryman,  one  at  a  time.  He 
seemed  to  guess  their  calling,  and  opened  with  the  re- 
mark that  law  is  the  shield  of  the  poor  man's  rights, 
-as  well  as  the  rich  man's  possessions.     That  a  simple 


1(>  TRIAL    PRACTICE. 

change  in  circumstances  ;  a  death  of  a  partner  or  a 
father,  might  soon  scatter  the  earnings  of  a  lifetime, 
and  leave  dependent  children  at  the  mercy  of  a  char- 
itable community.  He  quoted  a  verse  of  Burns  that 
u  man  was  made  to  mourn.''  He  touched  on  the 
means  and  struggles  of  earning  a  living,  and  turned  to 
the  tenant  case  only  when  his  voice  had  reached  the 
real  melody  of  a  song,  saying  :  "  And  this  is  the  house 
you  are  to  carry  from  the  heads  of  his  children,  and 
this  is  the  family  you  are  turning  from  their  home, 
and  this  is  the  mercy  that  our  friends  would  have  you 
show."  "  But  we  will  not,"  broke  out  a  juryman,  with 
a  resolute  look  and  a  face  well  wet  with  involuntary 
tears.  Instantly  rejoined  the  speaker,  "  Then  I  am 
done,"  and  cries,  '"go  on,  go  on,"  came  from  the 
banker  and  others,  and  confusion  followed  a  verdict  for 
the  barefooted  lawyer,  who  was  made  attorney  for  the 
bank,  and  became  a  statesman. 

DILLINGHAM. 

Governor  Dillingham,  of  Vermont,  was,  in  his  day,. 
a  powerful  advocate  A  man  of  good  presence,, 
medium  sized,  educated  in  books  and  men,  thorough 
in  law,  and  equally  so  as  a  real  student  of  human 
nature.  He  early  acquired  fame  and  fortune,  with  a 
fine  clientage,  in  Vermont,  whore  he  was  long  known 
as  Governor  Dillingham,  and  a  great  favorite  as  an 
orator.  He  had  a  wonderful  memory,  a  fund  of  rare 
humor,  a  keen,  incisive  way  of  cutting  legal  knots,  and 
happy  surprises  in  his  conduct  of  trials  that  are  always 
attractive.     Merchants    would  close  their  stores,  and 


VALLANDKMIAM.  17 

farmers  would  quit  their  fields,  to  hear  him.  At  one 
time,  in  an  interior  town,  he  was  detained  over  night  at 
a  hotel  where  a  lively  law  suit  was  in  progress  —  suits 
were  held  in  bar-rooms  then.  The  Governor  grew  un- 
easy, called  defendant's  counsel  aside  and  asked  per- 
mission to  aid  him  in  closing  to  the  jury,  which 
request  was  granted.  Quietly  suggesting  occasional 
points,  he  waited  his  turn  to  speak.  Addressing  the 
jury  as  a  neighboring  farmer  who  had  dropped  in  to 
hear  the  fun,  he  gradually  reached  the  real  pith  of  the 
contest,  and  suddenly  burst  forth  in  a  volume  of  such 
eloquent  thoughts,  stories,  and  copious  reasons,  that 
the  jury  sat  spell-bound  to  the  close.  The  plaintiff's 
counsel,  up  to  this  time  confident  of  victory,  was  so 
completely  captured  by  the  apt  words  of  his  adversary, 
that  his  reply  fell  flat  and  unnoticed.  The  jury  found 
a  verdict  for  the  gray-haired  farmer,  whom  counsel 
congratulated  as  "a  mighty  good  talker,  anyway," 
and  later,  learned,  to  their  great  amazement,  that  he 
was  the  State  Governor.  His  art  was  in  his  human- 
nature  style  of  reasoning. 

VALLANDIGIIAM. 

Clement  L.  Vallandigham  was  the  most  brilliant 
advocate  of  his  day  in  Ohio,  where  he  had  an  im- 
mense court  practice,  and  excelled  as  an  advocate 
before  juries,  in  both  civil  and  criminal  cases,  for  a 
score  of  years.  He  was  tall,  slim,  with  sharp  fea- 
tures, Roman  nose,  and  eagle  eyes,  magnetic  in  tone, 
power,  and  expression.  His  speeches  abounded  in 
illustrations,  wit,  and  skillful  setting  of  all  the  minor 

(2) 


18  TRIAL   PRACTICE. 

details.  He  was  an  exhaustive  reasoner,  a  real  vol- 
cano when  aroused  in  heated  discussion.  His  arms, 
hands,  and  body,  seemed  in  harmony  with  his  rapid 
thought  and  earnest  conviction.  He  had  intuitive 
genius.  He  was  utter  self-oblivion  in  all  his  gestures, 
bitter  in  speech,  and  determined  to  win  all  victories. 
Graphic  and  dramatic  in  style,  he  suited  his  words  and 
actions  to  perfect  harmony.  His  sentences  were  cut 
in  short,  spicy  sayings,  that  rang  in  the  ears  of  the 
jury,  and  were  intensely  powerful  and  convincing. 
His  art  was  in  his  clearness.  Every  particle  of  testi- 
mony illustrated,  while  in  manner  he  was  as  vivid  as 
Choate,  and  earnest  as  Seward.  He  died  young,  by 
his  own  accident,  in  showing  how  a  woman  could  shoot 
herself  with  a  pistol,  in  a  famous  murder  trial,  soon 
after  the  rebellion. 

STANSBURY. 

Henry  Stansbury,  leader  of  the  Cincinnati  bar  for 
years,  who  died  since  '75,  was  a  literal  Cyclopedia  of 
legal  knowledge  and  acumen.  Tall,  spare,  slim,  of 
the  style  and  manner  of  Chief  Justice  Marshall,  he 
possessed,  in  a  marked  degree,  the  genius  of  reaching 
a  jury  by  other  means  than  eloquence.  He  was  a 
pioneer  in  Kentucky,  and  lived  at  Newport,  near  Cincin- 
nati ;  grew  wealthy  in  heavy  cases  in  all  branches  of 
legal  practice.  The  sturdy  sense,  courtly  bearing, 
and  natural  aptitude  for  legal  discussions,  were  the 
forces  employed  to  carry  his  arguments.  Juries  be- 
lieved him.  They  took  what  he  said  as  a  child  would 
take  food  from  a  parent.  He  was  a  giant  in  law, 
by  reason  of  his  commanding  abilities  and  admirable 


ABRAHAM    LINCOLN.  19 

character.  For  years  he  drew  around  him  the  best 
elements  of  his  adopted  citv,  and  stood  at  last  as  a 
venerable  and  venerated  monument  in  the  courts  of 
Ohio. 

ABRAHAM  LINCOLN. 

Honesty,  integrity,  candor,  and  clearness  in  speak- 
ing, were  the  chief  characteristics  of  this  wise,  shrewd, 
far-seeing  man,  who  won  nearly  all  his  jury  cases  for 
years  before  his  election  to  the  Presidency.  He  was 
logical,  and  had  such  a  fund  of  clear  illustrations,  that 
his  conclusion  when  reached,  seemed  the  only  one 
possible  to  contemplate. 

He  was  utterly  wanting  in  low  cunning,  and  yet 
crafty  by  his  candor.  His  reasoning  was  founded  on 
his  unerring  judgment  of  human  nature,  and  first  com- 
pared with  some  simple  object  that  he,  and  his  hearers, 
could  not  fail  to  agree  upon.  His  marvelous  fund  of 
humor,  was  never  better  used  than  before  a  jury.  A 
good,  clear-cut  joke  was  to  him,  an  excellent  argu- 
ment— it  always  is  to  a  jury.  Like  Seward,  he  relied 
upon  himself,  and  depended  on  his  own  judgment. 
Appearing  to  waver,  he  was  self-asserting  when  it  best 
served  his  purpose.  He  believed  in  his  points  before 
making  them,  and  soon  made  others  come  to  the  same 
conclusion.  His  instinctive  knowledge  of  men,  taught 
him  that  either  side  might  have  minor  rights  ;  but  only 
one  central  controversy  should  be  settled  in  a  suit,  so 
he  waived  the  less  to  gain  the  greater.  He  was  a 
thinker,  and  carried  his  plans  in  deep  silence  to  and 
from  his  office,  gaining  strength  by  revolving  them  in 
his  mind. 


20  TRIAL    PRACTICE. 

Great  and  noble  in  his  natural  sympathies,  he  never 
forgot  his  nobility  by  elevation  as  head-servant  of  a 
mighty  nation.  The  same  counselor,  friend,  and  ad- 
vocate of  right  and  justice,  went  to  mold  and  make 
the  martyr  that  first  made  the  man.  With  such  qual- 
ities added  to  a  warm,  friendly  feeling,  a  sympathetic 
and  often  eloquent  voice,  with  a  will  to  do  equal  and 
exact  justice,  with  an  inclination  to  speak  and  act,, 
and  do  his  part  in  absolute  rectitude,  what  wonder  he 
succeeded  !  He  had  every  requisite  of  an  advocate, 
form,  life,  voice,  fancy,  logic,  honesty,  ambition, 
knowledge  of  men,  knowledge  of  law,  mastery  of  facts, 
clearness  and  belief  in  his  cases — having  selected  for 
trial,  only  such  as  were  morally  certain  to  bring  him  a 
victory.  Even  with  Webster  such  a  mind  would  have 
shown  no  weak  comparison  in  a  contest  before  a  jury. 
The  reader  will  see  more  of  Lincoln  in  a  separate  chap- 
ter. 

CAEPEXTER. 

The  brilliant  career  of  the  genial  and  ever  busy  Matt 
Carpenter,  is  quite  generally  known.  His  law  practice 
during  the  last  years  of  his  life,  was  mainly  in  the 
Supreme  Court  at  Washington.  But  we  will  notice 
his  earlier  career  as  an  advocate.  His  presence  was 
tine  and  imposing,  large,  tall  and  graceful  ;  smoothly 
shaved,  save  a  mustache;  heavy  hair  and  large  eyes  ; 
rather  a  broad  head  and  sinewy  frame  ;  musical  voice 
of  great  power;  witty  and  clear  in  his  replies  ;  .a  real 
orator  in  court  or  Congress.  He  saw  a  case  in  the 
center.  He  framed  his  speeehes  like  a  rare  bouquet, 
adding  flower  to  flower  until  they  were- beautiful.     He 


CORWIN.  21 

was  logical  and  strong,  full  of  ingenious  devices  and 
captivating  in  the  terseness  of  illustrations  ;  one  of 
those  sweeping  orators  that  carry  an  audience  like 
Garfield  did,  by  sublime  passages  to  the  height  of 
sublimity.  Carpenter  was  great  with  juries,  great 
M-ith  courts,  and  at  home  with  witnesses.  Every  inch 
an  advocate,  and  genial  enough  to  attract  a  host  of 
personal  admirers,  who  crowded  in  to  hear  his  closing 
speeches.  He  early  adopted  a  plan  of  terse  reasoning- 
through  stories,  illustrations,  but  his  style  can  not  be 
said  to  be  at  all  trilling.  He  died  young  while  United 
States  Senator.  In  his  contests  with  Judge  Ryan,  he 
was  about  evenly  matched. 

CORWIN. 

Tom  Corwin,  the  wit  and  genius  of  Ohio,  twenty- 
five  years  ago,  was  a  man  of  wonderful  ability,  and 
gifted  as  well  as  brilliant,  as  an  advocate  ;  tall,  large, 
dark  hair,  dark  eyes  and  complexion,  large  forehead, 
smoothly  shaven  face.  In  style,  varied,  at  times 
logical — again  humorous,  then  brilliant  and  rhetorical  : 
vivid  in  imagery,  graphic  in  descriptions — a  master  of 
men  and  eloquence.  His  career,  as  an  advocate,  is 
scarcely  equalled  in  any  country. 

While  Senator,  in  Washington,  the  Ohio  Ten  Mile 
Valley  R.  R.  Co.  was  formed,  and  Mr.  Smith  made 
president.  Suit  arose  and  no  one  but  Corwin  could 
answer  for  opponents  of  the  scheme.  He  came  on  to 
argue  a  dry  demurrer.  A  lawyer,  for  a  joke,  sent 
word  that  Tom  Corwin  was  to  speak  in  the  court  house. 
He  found  the  court  yard  and  court  house  filled  with 
people.     He  walked  in  and  shook  hands  with  lawyers 


22  TRIAL    PRACTICE. 

in  a  friendly  and  surprised  manner.  The  one  who 
had  formed  the  joke  was  among  them.  "  How  is 
this? "  said  Tom.  "  They  heard  you  were  to  be  here  ; 
they  came  from  the  hills  and  valleys,  to  hear  you." 
Corwin  took  it  all  in  a  glance.  With  great  dignity,  he 
said  :  "  May  it  please  your  honor,  I  am  pleased  over 
this  large  array  of  people  ;  I  am  honored  ;  I  am  de- 
lighted." He  expressed  his  surprise.  He  touched  the 
demurrer  five  minutes,  then  touched  the  crowd.  They 
laughed,  cheered,  till  almost  uncontrolable. 

Corwin  went  on:  "I  dreamed  last  night,  your 
honor,  that  I  stood  upon  an  eminence  and  saw  wagons 
coming  from  the  valleys  of  this  beautiful  county  of 
Miami.  I  stood  under  a  tall  sycamore  tree.  There 
was  a  table  spread  with  the  luxuries  of  the  fields,  by 
the  husbandmen  and  their  wives.  When  everything 
was  completed,  and  the  tables  were  so  crowded  with 
good  things  that  they  seemed  ready  to  break,  I  saw 
at  the  head  of  that  table,  the  president  of  the  Ten 
Mile  Valley  K.  R.,  at  the  foot,  the  vice-president. 
The  father  and  mother,  side  by  side  ;  the  lovers  and 
brothers  all  eating  of  the  delicious  fruits  ;  and  one 
man  proposed  this  toast :  '  Here  is  to  the  father  of 
his  country,  Washington;  first  in  peace  and  last  in 
the  hearers  of  his  countrymen.'  Then  one  said  :  'I 
propose  a  toast,  *  President  Smith,  of  the  10  Mile 
Valley  R.  It.  Co.*  Instantly  the  concourse  vanished  ; 
tables  disappeared.  It  was  a  dream;  now,  your 
honor,  had  it  been  built,  the  dream  woidd  have  been  a 
reality!  But  the  whole  paper  road  is  a  dream  !  "'  He 
Avon  his  case,  amid  rounds  of  applause. 


PREPARING    FOR    TRIALS.  23 


CHAPTER  III. 


PREPARING  FOR  TRIALS. 


When  a  case  is  taken  for  examination,  and  witnesses 
are  tendered  to  sustain  either  the  theory  of  prosecu- 
tion or  defense,  something  may  be  gained  from  first 
hearing  his  own  story,  told  in  his  own  way.  It  may 
need  pruning  to  come  within  the  rules  of  evidence. 
Most  witnesses  are  inclined  to  bring  very  much  hear- 
say, which  is  not  only  a  waste  of  time,  but  causes  them 
to  be  tripped  and  confused  during  delivery.  If  a  wit- 
ness is  told  that  such  objections  will  be  common,  and 
must  be  borne  with,  and  should  not  be  a  cause  of 
anger  or  short  answers,  he  will  be  more  patient  and 
reasonable  on  the  stand.  The  machinery  of  trials  will 
run  with  far  less  friction  if  witnesses  and  counsel  un- 
derstand each  other  in  advance.  A  good  trial  lawyer 
will  please  a  court  and  jury,  by  even  an  orderly  ar- 
rangement of  facts  and  circumstances. 

Some  witnesses  are  too  low  voiced  to  be  heard,  and 
told  to  speak  louder,  at  trials,  will  be  confused  by  it, 
who,  if  made  to  understand  that  their  story  is  to  be 
told  in  all  respects  as  clearly  as  they  would  explain  it 
to  a  family  circle  ;  that  to  be  pert,  cranky,  or  too 
independent,  will  lead  opposing  counsel  to  greater  se- 


24  TRIAL    PRACTICE. 

verity.  Human  nature  is  such,  that  persuasion  is  most 
likely  to  please,  and  kind  answers  to  beget  kindness. 
It  is  a  mistake  to  instruct  witnesses  to  be  over  positive, 
or  attempt  to  vary  from  the  truth.  Truth  will  tell 
the  same  story  a  thousand  times  without  variations. 
It  is  such  an  armor  of  strength  ;  it  nerves  one  with 
such  supreme  confidence  that  counsel  can  safely  reas- 
sure all  his  witnesses  to  a  certainty  that  in  telling  the 
clear  truth  they  are  never  likely  to  be  tangled,  or  to 
cross  their  stories,  and  become  a  subject  of  ridicule. 

I  can  better  explain  this  by  an  incident :  A  lady  was 
suspected  by  a  clerk  of  shop-lifting,  and  invited  into 
the  private  office  by  the  merchant,  who  abruptly  ex- 
plained that  she  had  been  caught  in  the  act.  Her 
conscious  innocence  did  not  desert  her  for  a  single  mo- 
ment, and  she  asserted  it  openly  and  boldly.  The 
merchant  insisted  on  a  search  being  made,  and  she 
readily  consented,  adding,  "  What  have  1  taken,  sir?  " 
"  Handkerchiefs,"  he  replied,  "  there  is  one  in  your 
reticule."  This  she  handed  out  boldly,  and  it  con- 
tained but  one  handkerchief,  which  the  greedy  man 
held  up  in  gratified  delight.  "  But,  you  goose,  you," 
said  the  now  indignant  woman,  "that  has  my  three 
initials  plainly  marked  in  ink,  and  was  bought  here 
month*  ago.  The  three  1  bought  to-day  will  be  here  in 
a  moment,  with  my  change,  which  I  was  waiting  for, 
when  you  invited  me  here  with  such  impertinence." 
Just  then  the  cash  and  parcel  boy  arrived  as  she  had 
stated.  The  woman's  look  of  triumph  was  a  sharp 
contrast  to  that  of  the  confused  merchant,  who  had 
lost  a  good  customer  and  gained  a  large  lawsuit  by  his 
hasty  guessing.      This  illustration  shows    how  strong 


ORDER    IN    OFFICE.  25 

and  brave  one  always  is  with  right  on  his  side.  There 
is  no  better  witness,  no  better  counsel,  than  a  just  cause, 
and  the  right  side  to  contend  for  before  a  court  and 
jury. 

OEDER  IX  OFFICE. 

Law  practice  begins  in  the  office,  matures  in  the 
courts,  and  ends  in  disappointment  —  to  one  side  or 
the  other. 

The  most  expensive  offices  are  rented  by  New  York 
lawyers,  but  by  far  the  best  libraries  and  best  pre- 
served tiles  are  in  western  cities  and  large  country 
towns.  The  recent  improvement  in  office  furniture, 
together  with  fine  ceilings  and  rich  carpets  —  an  inno- 
vation of  the  past  twenty  years  —  is  a  move  in  the 
right  direction  for  those  who  can  afford  it.  They  be- 
get a  just  pride  of  business  surroundings,  and  a  love 
for  the  profession. 

Order  in  offices  denotes  care  and  attention  to  details, 
and  neglect  is  a  mark  of  indifference  that  leads  to 
forgetf ulness.  It  takes  no  more  time  to  keep  things 
in  light  places  at  all  times,  than  risk  the  anxiety 
of  hunting  them  up  in  seasons  of  use,  when  their  loss 
may  be  most  keenly  humiliating,  if  not  a  positive 
injury  to  business.  The  best  merchants  keep  all  goods 
in  order.  Trade  is  increased  even  by  the  appearances 
of  a  proper  location  and  tasty  arrangement.  Doubt- 
less, men  of  slovenly  habits  may  draw  around  them  a 
certain  class  of  clients,  but  order  and  system  are  never 
likely  to  discourage  custom.  Good  practice  demands 
fair  surroundings.  As  men  are  less  embarrassed  in 
clean  boots  and  dressed  to  suit  their  calling,  so  the 


26  TRIAL   PRACTICE. 

office  of  a  lawyer  need  not  seem  like  that  of  a  coal 
yard.  Nothing  need  be  used  for  appearance,  and  yet 
something  will  be  gained  by  having  a  pleasant  home 
to  work  in.  Many  hours  are  spent  in  an  office  that 
few  could  afford  to  lose  out  of  their  lives  any  portion 
that  could  be  enjoyed  in  pleasant  quarters. 

To  live  up  to  one's  highest  privileges  is  not  only  a 
pleasure,  but  a  duty.  To  respect  and  honor  one's 
business,  is  to  dignify  and  brighten  its  surroundings. 
What  if  it  requires  a  care  each  year  to  be  neat, 
orderly,  and  have  pleasant  quarters,  with  some  out- 
ward signs  of  prosperity?  It  was  an  extreme  view, 
yet  half  full  of  truth,  that  a  real  estate  owner  men- 
tioned in  connection  with  his  personal  experience  :  "  It 
is  not  half  so  much  what  we  have,  as  what  men  think 
we  have,"  was  his  reason  for  building  a  fine  brick, 
and  driving  to  his  office  in  a  neat  carriage.  "  If  I 
consulted  my  income,"  he  said,  "I  would  drive  a 
plainer  turnout,  and  live  in  a  cottage  ;  but,  I  find  it 
pays  better  to  live  in  a  good  house,  in  order  to  set 
other  people  to  buying  better  homes,  and  increase  the 
profits  of  real  estate  business."  A  similar  statement 
was  made  by  a  leading  physician,  who  struggled  for 
years  in  semi-poverty,  until,  by  a  visit  to  Chicago,  a 
friend  advised  him  to  spruce  up,  get  a  first  class  loca- 
tion on  a  rich  street,  and  charge  accordingly.  He 
tried  it,  and  says,  "I  can't  afford  to  rent  or  keep  a 
poor  office.  It  pays  twice  as  well  to  be  located  and 
ready  for  rich  customers."  There  is  no  disguising 
the  fact  that  no  one  will  place  a  higher  estimate  on 
one's  services  and  ability  than  he  is  willing  to  de- 
mand.    It  is  better  at  all  times,  purely  as  an  invest- 


lawyer's  advice.  27 

ment,  to  keep  an  office  up  to  the  highest  average 
standard  that  is  known  to  be  in  use  by  the  prosperous 
portion  of  the  profession. 

LAWYER'S  ADVICE. 

To  become  a  rich  and  influential  lawyer,  one  must 
£:uard  well  his  counsel  and  avoid  bad  suits.  It  was 
an  easy  matter  to  nickname  Seward  "Small  pota- 
toes," but  Seward  had  too  much  sense  to  be  bowed 
down  in  practice  by  such  little  slanders  on  his  char- 
acter, and  showed  clear  courage  in  outgrowing  the 
malice  and  becoming  a  master  advocate  and  consci- 
entious  counsel.  He  had  the  courage  to  do  his  duty  to 
all  clients,  and  not  risk  a  wrong  verdict  even  to  gratify 
temporary  feelings  of  triumph.  He  made  it  a  rule  of 
his  practice  to  win  just  and  lasting  victories  for  his  cli- 
ent by  honest  means.  His  great  forte  was  candor 
and  sincere  attachment  to  his  client's  interest.  His 
defense  of  Freemen  against  public  opinion,  and  his 
fidelity  to  the  alleged  railroad  conspirators,  whom  he 
defended  during  an  entire  summer,  is  but  a  chapter  of 
his  history,  and  displays  his  ability  and  determination. 
Many  a  man  would  have  wavered  and  halted  in  a  course 
so  unpopular.  The  struggles  of  Seward  in  early  life 
were  the  real  foundation  of  his  progress  in  the  profes- 
sion. Similar  crosses  in  life  came  to  Shaffer,  to  Por- 
ter, and  Beach,  and  many  more  who  have  served  cli- 
ents through  a  long  life  of  candor  and  usefulness,  and 
earned  a  lasting  name  in  legal  history. 

It  may  not  bring  so  large  fees  for  the  first  few  years, 
but,  in  the  end,  honest  work,  well  done,  is  amply  re- 


28  TRIAL    PRACTICE. 

warded.  The  hardships  of  early  life  are  remembered 
by  thousands  as  training  schools,  in  the  life  of  many  a 
lawyer.  Many  a  young  man  now  starting  in  practice, 
may  point  to  the  long  list  of  illustrious  advocates  who 
began  poor,  and  grew  to  eminence  on  the  fair  merits 
of  good  counsel,  accepting  small  fees  up  to  an  age  when 
a  demand  for  their  talents  and  services  commanded 
large  salaries  in  trusted  positions. 

The  care  of  estates,  the  loaning  of  money,  and 
counsel  of  corporations,  with  much  of  the  business- 
man's legal  work,  falls  to  conscientious  counsel;  and 
when  such  a  reward  comes,  the  fees  are  larger  and 
labors  less  irksome,  while  the  employment  is  constant 
and  highly  respected.  When  such  lawyers  reach  the 
end  of  life  and  stand  as  leaders  in  their  States,  they 
may  well  be  envied  by  the  rich,  and  mere  money 
makers,  of  any  station. 

In  every  community  there  arc  business  men  who 
have  longed  to  be  lawyers — longed  for  the  luxury  that 
an  advocate  enjoys,  as  he  speaks  for  his  neighbors  at 
public  gatherings,  or  settles  their  disputes  with  wisdom 
and  honor.  Many  a  man's  liberty  is  secure  by  the 
work  of  his  counsel  ;  many  a  business  enterprise  stands 
on  the  caution  of  its  confidential  adviser  ;  many  a  farm 
title  or  costly  contract  is  planned  and  executed  by  the 
silent  brain-work  of  an  unknown  partner  —  for  the 
counsel  is  the  partner,  in  a  large  sense,  of  every  client 
whoso  confidence  he  possesses.  The  business  of  a 
lawyer,  more  than  that  of  any  person  but  a  doctor, 
depends  on  the  candor  of  his  dealings,  and  the  sound- 
ness of  his  advice 


TEN    TRIAL    RULES.  29 

TEN  TRIAL  RULES. 

1.  Select  young  jurymen,  with  warm,  intelligent 
faces ;  exclude  ex-officers  of  every  kind.  Become 
early  familiar  with  the  winning  facts  on  both  sides. 
Conceal  them,  and  instruct  parties  and  witnesses  to  keep 
silence,  and  let  counsel  do  the  planning  of  theories. 

2.  Find  what  opponents  are  likely  to  prove,  and  how 
probable  will  be  the  showing,  and,  if  false,  how  it  can 
be  denied  or  met  by  fair  explanation. 

3.  Nothing  takes  so  well  as  common  sense.  Be 
reasonable.  Never  weary  a  court  with  technicalities, 
nor  a  jury  with  quibbles,  nor  offend  a  witness  by  brow- 
beating, but  know  what  you  need  to  make  a  case  and 
stop  when  it  is  established,  so  that  the  jury  may  see 
the  sharp  end  of  your  evidence. 

4.  Cross-examine  only  with  an  object — bring  out 
the  point  and  don't  cover  it ;  avoid  all  abuse  of  coun- 
sel or  parties  ;  such  quarrels  draw  attention  from  the 
issue,  and  cause  disagreements,  while  kindness  and 
fair  play  win  a  lasting  victory. 

5.  Explain  the  reason  of  the  law  to  the  jury,  or  in 
their  hearing.  The  average  mind  is  wiser  than  many 
suppose.  But  be  sure  the  jury  know  the  consequences 
of  the  verdict. 

6.  Counsel,  and  not  clients,  should  control  cases  and 
trials. 

7.  In  opening  an  argument,  select  first  the  points  on 
which  there  is  least  dispute,  and,  if  possible,  those 
nearest  with  your  position.  Pass  to  the  others  with 
confidence,  and  carry  the  jury  with  you  by  reason,  not 
by  threats,  not  by  bombast.     Leave  appeals  until  after 


30  TRIAL   PRACTICE. 

the  convincing  is  accomplished.      But  feel  what  you 
say,  and  believe  what  you  say,  always. 

8.  Treat  a  jury  with  unbounded  confidence.  Like 
begets  like,  under  all  circumstances.  Men  are  not 
driven  by  threats,  but  pursuaded  and  convinced  by 
reason  and  common  sense  when  it  is  clearly  illustrated. 
Jurymen  prefer  to  do  right.  Show  them  the  right 
road  in  a  plain,  clear  manner. 

9.  The  strongest  of  reason  is  :  What  would  you  have 
done  under  like  circumstances?  Human  nature  finds 
excuses  for  wrongs  that  lead  to  good  results  and  are 
justifiable.  Men  generally  do  on  a  jury  what  seems 
most  reasonable,  if  it  is  shown  to  them  in  a  sensible 
and  convincing  manner. 

10.  There  is  no  opportunity  better  than  the  earliest. 
Let  the  jury  know  from  the  beginning  that  you  believe 
in  your  rights  and  will  fairly  enforce  them,  while  their 
minds  are  clear  as  white  paper.  "Write  it  on  their 
hearts  and  engrave  it  on  their  bones,"  that  your  client 
has  the  rights  you  contend  for,  and  will  ask  for  none 
other.  But  insist  upon  justice.  On  this,  be  so  full, 
so  determined,  so  fortified  with  law  and  reasonable 
•evidence  that  it  will  stand  like  a  mountain,  unshaken 
•either  by  quibbles  or  appeals. 


HUMAN    NATURE.  31 


CHAPTER  IV 


HUMAN  NATURE. 


Human  nature  is  the  instinct  of  reason.  It  tells 
what  is  right,  what  is  wrong,  what  is  probable  and 
what  is  unreasonable.  It  is  something  like  intuition 
and  yet  separate  from  all  other  faculties.  Each  nature 
being,  in  one  sense,  the  likeness  of  other  natures, 
feels,  sees  and  understands  best  the  parts  of  life  in 
which  it  has  had  experience. 

The  lady  that  looked  angered  at  Napoleon,  in  his 
attempt  to  fondle  her  child,  was  pleased  and  quieted  by 
his  remark,  "  I  am  a  father.  "  Instantly  she  felt  the 
touch  of  nature  responsive  to  her  own.  The  advocate 
who  speaks  of  parting  lines,  or  reefing  sails,  or  knots 
an  hour,  port  side  and  fathoms  deep,  attracts  the 
sailor  juryman's  notice  as  readily  as  the  one  who 
speaks  of  braces,  beams,  base  or  moulding  to  a  joiner 
juryman,  while  to  another,  some  keen  reply  in  the 
language  of  cards,  would  touch  his  fancy  sooner  than 
either. 

Human  nature,  then,  is  understood  by  the  reference 
to  the  condition  of  hearers.  Men  listen  to,  read  about, 
and  seek  after  thing's  that  fill  their  ideals.     The  Mexi 


32  TRIAL   PRACTICE. 

can  is  as  well  pleased  with  a  bull  fight,  as  a  New 
Yorker  would  be  by  a  change  of  stock,  a  Chicagoan 
at  a  rise  in  grain,  or  a  Bostonian  with  a  lecture.  The 
pleasure  of  a  theatre-goer  may  be  distasteful  to  the 
deacons  on  a  jury  and  even  a  reference  to  church  or 
religion  will  often  lead  to  a  disagreement.  In  select- 
inff  a  jury  some  heed  must  always  be  paid  to  these 
sympathies,  including  nationality,  for,  trifling  as  it  may 
seem,  five  Englishmen  in  America,  matched  with  four 
Germans  and  three  Irishmen,  would  hardly  be  harmo- 
nious in  a  land  case.  The  men  to  be  avoided  on 
juries,  are  leaders,  ex-officials,  and  unyielding  deba- 
ters, unless  they  are  debaters  for  your  side.  One  such 
is  equal  to  five  ordinary  men. 

Take  a  political  gathering,  and  how  many  will  govern 
and  control  its  action?  Less  than  a  dozen  to  a  thou- 
sand will  rule  a  convention,  and,  in  many  cases,  one 
man  can  manage  a  multitude.  So  with  juries  ;  they  are 
actuated  by  motives  and  go  so  much  by  instinct  or 
prejudice  and  leadership,  that  it  is  well  to  avoid 
danger  in  advance  by  a  wise  selection  of  even-tem- 
pered gentlemen. 

How  will  you  know  their  prejudices?  By  compari- 
son. Having  excluded  enemies  and  officers  (not 
officers,  if  for  the  plaintiff)  survey  the  balance  ;  turn 
off  the  hard  men,  men  who  have  frozen  into  ruts  of 
reason  ;  exclude  low-headed  men,  they  generally  get 
stubborn.  Look  for  the  Burnside  heads,  with  venera- 
tion, intelligence,  and  capacity  to  comprehend  matters. 
Remember  men  of  30,  40  and  up  to  50  believe  in  life, 
in  enjoyment,  in  fair  play,  and  have  a  hatred  of  mean- 
ness and  mean  acts.     If  your  case  is  desperate,  lean 


HUMAN    NATURE.  33 

on  discordant  elements  to  secure  a  division  of  opinion. 
The  defense  should  like  a  disagreement. 

Fair  men  have  warm  blood.  The  milk  of  human 
kindness  is  not  crushed  out.  They  can  be  reasoned 
with.  Old  men  may  be  deaf;  many  are  fixed  and 
rigid  in  their  notions,  and  take  prejudices  that  reason 
can  not  conquer.  The  very  best  means  of  selection  is 
a  measurement  by  the  eye.  I  never  knew  dishonest 
eyes  in  an  honest  head.  Honest  eyes  are  wonder- 
fully telling.  They  are  the  windows  of  the  features, 
that  light  and  stamp  them  indelibly. 

Often  during  a  trial  some  tender  touch  will  bring 
silent  tears  to  the  good  men,  and  aid  in  a  verdict  when  a 
stubborn  one,  in  his  stead,  would  have  been  stolid  as 
iron  and  unmoved  by  any  touch  of  nature.  Sympathy 
is  to  be  neither  courted  nor  despised.  It  is  a  two- 
edged  sword,  and  should  remain  in  sheath  till  drawn 
by  actual  use,  or  in  self-defense.  To  excite  sympathy, 
do  it  but  once.  Strike  when  the  iron  is  hot.  Seize  some 
point  that  has  been  hinted  at  from  the  other  side.  This 
is  a  case  :  A  sister  sued  for  breach  of  promise.  Her 
main  stay  through  the  trial  was  her  brother,  who  was 
berated  by  counsel  for  "  neglecting  business  and  ad- 
vising his  kindred  into  a  muddy  law  suit." 

"  Counsel  has  seen  tit,"  said  the  other  in  reply,  "  to 
murmur  at  the  attentions  of  this  kind  and  tender- 
hearted brother,  who  neglects  business  to  attend  a  sis- 
ter's lawsuit.  Muddy  law-suit!  Muddy,  how?  By 
the  slimy  touch  of  a  coward's  perfidy  !  One  who  has 
not  stolen  in  at  nightfall,  and  carried  away  her  jewels 
and  her  wardrobe,  and  her  years  of  loving  industry  ; 
but  one  who  stole  into  her  affections,  and  taught  her  to 

(3) 


34  TRIAL    PRACTICE. 

regard  him  as  her  destiny.  Then,  while  in  possession 
of  her  character,  and  the  jewel  of  her  existence — a 
heart's  first  love  and  confidence — he  has  thrown  in  the 
dust  to  make  her  life  dismal,  and  soil  the  current  of 
her  life  blood  forever.  And  of  whom  could  the  poor 
girl  hope  for  comfort?  To  whom  could  she  turn  in 
trouble  ?  To  one  who  had  grown  with  her  growth  in 
this  big,  friendless  city?  And  to  him  I  say,  and  you 
say,  God  bless  the  young  man  for  his  confidence  in  his 
sister  !  God  bless  them  both  for  their  mutual  confi- 
dence !  God  bless  any  young  man  for  such  nobility > 
loho  sees  the  sister's  wrong,  and  yet  has  the  steady  courage 
to  stay  his  hand  from  jiersonal  assault,  and  help  her  to 
seek  redress  in  a  lawful  manner!  Where  should  she 
turn  but  to  him,  her  only  living  relative?  Could  she 
speak  and  tell  her  confidence  to  her  faithful  father? 
No  answer  could  be  heard  in  that  far-away  home 
above  the  stars,  and  so  with  mother  gone,  and  father 
gone,  and  an  only  brother  as  her  refuge,  counsel  must 
throw  that  poisoned  arrow  through  the  heart  of  this 
unfortunate  orphan  creature,  and  open  anew  the 
wound  his  client  had  left  unhealed..  O,  gentlemen, 
am  I  misjudging  human  nature  when  I  say  you  will 
resent  that  insult  with  your  verdict?  " 

I  could  see  the  jury  moulded  and  united  by  that 
sentiment  which,  more  than  any  one  thing,  turned  the 
verdict  to  heavy  damages. 

STATING    CASES. 

I  have  never  heard  a  better  statement  of  a  claim 
than  in  the  form  of  a  story.  To  say  at  the  beginning 
of  your  statement,   "The   story  of  this   case,  gentle- 


STATING    CASES.  35 

men,  is  romantic,"  at  once  fixes  attention.  Then, 
without  any  circumlocution,  go  forward,  keeping 
dates  and  events  in  logical  order.  "  It  will  appear  by 
the  evidence  that  the  plaintiff  was  formerly  an  actress 
of  New  Orleans,  noted  for  her  charms  of  manner,  as 
well  as  personal  beauty  ;  that  she  attracted  the  atten- 
tion of  a  wealthy  young  gentleman,  now  the  defend- 
ant. That  a  day  was  appointed  for  their  marriage  ; 
that  a  sham  form  was  used  by  a  pretended  minister, 
and  she  surrendered  herself  and  her  life  to  the  hus- 
band of  her  choice,  and  ever  afterwards  remained  true 
to  her  marriage  relations.  It  will  appear  the  priest 
was  only  a  pretended  clergyman,  probably  an  hireling 
for  that  purpose  ;  that  after  the  birth  of  two  beautiful 
children,  and  the  death  of  defendant's  father,  and  he 
had  become  a  millionaire,  and  after  this,  his  young 
wife  turned  to  a  silver-grey-haired  mother,  and  head 
of  his  household,  he  suddenly  decided  to  seek  another 
and  a  younger  love,  and  actually  brought  to  his  home 
such  a  creature,  whose  presence  was  mildew  and  poi- 
son to  their  home  and  happiness  :  and,  when  she  could 
endure  it  no  longer,  defendant  seeks  to  cast  her  off, 
and  treat  the  marriage  as  spurious  from  the  fact  of 
his  own  perfidy.  Believing  in  the  validity  of  such 
marriages  under  our  statute,  and  believing  that  the 
wife  and  mother  is  entitled,  at  /east,  to  the  poor  pit- 
tance of  her  share  in  the  husband's  property,  and  to  a 
declaration  that  shall  vindicate  the  character  of  her 
children,  we  have  brought  her  action  in  this  manner 
for  damages.  The  case  needs  no  comment.  It  ap- 
peals to  the  sense  and  reason  of  mankind  to  grant  the 
wife  and   mother  her  demand  in  the  declaration,  which 


36  TRIAL    PRACTICE. 

we  believe  you  will  do  on  a  full  hearing  of  the  circum- 
stances. If  it  shall  be  attempted,  as  letters  threaten- 
ing as  much  would  indicate,  to  malign  the  character  of 
plaintiff,  to  further  add  infamy  to  injury,  then  we  shall 
be  ready  to  set  up  the  real  facts  in  that  matter,  and 
show  how  the  husband,  by  connivance,  sought  to  get 
room  for  a  divorce  by  acts  of  collusion  with  designing 
men,  versed  in  the  handicraft  of  flattery  and  soft 
promises,  but  this  will,  we  think,  but  intensify  the 
wickedness  of  the  defendant,  if  attempted.  We  are 
here  on  the  merits,  and  ready  for  a  hearing  of  the 
whole  matter." 

Follow  such  a  statement  at  once  by  one  of  the  truest 
and  best-tempered  witnesses,  and  show,  by  clear  cour- 
age, step  by  step,  in  the  order  of  the  evidence,  how  all 
matters  happened,  in  the  clearest  possible  form,  clear- 
ness being  itself  eloquent  in  such  matters. 

If  the  statement  is  attractive,  you  rivet  the  attention 
of  the  jury.  If  borne  out  by  the  evidence,  you  weld 
it,  step  by  step,  and,  after  a  few  hours'  work,  you 
have  converted  the  minds  of  the  jury  to  your  theory, 
for  they  had  rather  believe  that  such  a  person  had  such 
a  reward  in  law,  than  dream  of  a  theory  of  a  wrong  side 
triumphant. 

The  evidence  being  in,  rest  promptly,  and  guard 
your  client's  rights  from  the  other  side.  Should  a 
half-dozen  villains  dare  to  swear  to  mean  and  unrea- 
sonable stories  about  the  plaintiff,  pass  them  with  just 
enough  cross-examination  for  impeachment — they  gen- 
erally impeach  themselves  by  bad  characters  and  evil 
faces — and  do  not  depend  too  much  on  destroying  such 
testimony.     It  is  worthless,  generally. 


ARGUMENT    TO    JURY MANAGING    CASES.  37 

ARGUMENT  TO  THE  JURY. 

The  argument  should  begin  by  treating  of  the 
points  least  disputed.  Brush  away  a  few  unreason- 
able things ;  correct  a  few  mistakes ;  pass  a  few 
bad  witnesses,  and  say  :  This,  then,  is  the  real  con- 
troversy, whether  such  a  marriage  is  a  marriage, 
and  whether  such  a  wife  is  a  legal  one,  and,  if  de- 
ceived, what  she  deserves  in  damages.  Argue  fully, 
review  fully  and  tersely,  briefly  (Burr's  best  rule  was 
thirty  minutes),  and  clinch  the  whole  with:  What 
would  you  expect  for  a  sister,  or  a  daughter,  in  such 
cases?  Then,  in  the  intensity  of  personal  belief,  be 
in  deep  earnest,  and  demand  a  verdict,  using  eloquence 
enough  to  impress  the  importance  and  value  on  the 
hearts  of  a  jury,  in  words  that  the  Chinese  Emperor 
used  to  Governor  Seward,  "  Write  it  on  their  hearts 
and  engrave  it  on  their  bones,"  that  your  client  de- 
serves a  liberal  verdict. 

MANAGING  CASES. 

Counsel  seldom  blunder  on  making  their  cases  out 
of  court.  The  story  sounds  so  plausible,  told  by  one 
Avithout  oath  that  it  sounds  like  the  only  theory  that 
could  be  imagined  or  established.  Soon  enough  he 
will  find  his  mistake  in  the  trial ;  much  will  fall  off  by 
a  timid  delivery  ;  much  will  be  forgotten  under  oath, 
and  on  hearing  a  few  witnesses  sharply  questioned, 
others  grow  cautious  and  conceal  what  may  possibly 
lead  them  to  contradict  others,  and  that  they  fear  may 
bear  on  their  credibility. 


38  TRIAL    PRACTICE. 

There  is  no  need  of  the  slightest  apprehension  to  a 
truthful  witness.  Truth  told  on  the  hill  tops  of  all  the 
different  countries  on  earth,  if  truth,  is  identical  every- 
where. The  witness  should  know  this.  It  is  a  coun- 
sel's duty  to  tell  his  witnesses  that  truth  is  always 
alike,  always  safe,  always  powerful. 

But  the  best  witness  may  not  always  be  situated  so 
as  to  give  the  right  fact  in  the  right  way. 

A  case  happened  in  A.  like  this  :  In  the  absence  of  a 
gentleman  at  Saratoga  in  July,  a  telegram  came  to  his 
secretary  to  pay  a  certain  bill,  not  exceding  a  sum 
named.  The  next  day  a  young  man  called  and  pre- 
sented such  a  bill,  and  received  a  check  for  it,  and  de- 
parted. Soon  after  the  gentleman  returned,  and  denied 
both  bill  and  dispatch,  and  caused  the  arrest  of  one 
positively  identified  by  two  persons  as  the  person  who 
collected  the  money  on  a  check  to  bearer.  The  bank 
'was  unable  to  aid  in  identification,  which  turned  on  the 
secretary  and  book-keeper.  The  latter  was  careless  in 
answers,  and  left  a  decided  doubt,  from  inattention  to 
details.  He  merely  remembered  of  a  spruce  young 
man,  very  polite,  calling  and  getting  a.check,  after  a  tel- 
egram in  their  letter-box,  and  was  not  certain  enough 
to  secure  conviction.  The  secretary  began  by  quite  a 
show  of  certainty.  He  had  known  the  prisoner  eight 
years  before,  and  was  reasonable,  candid  in  descrip- 
tion, etc.,  seeming  to  make  a  case  without  ques- 
tion. 

"  You  were  a  busy  man  in  the  office?"  began  the 
cross-examiner.     "Yes." 

"And  shaded  your  windows  at  that  hour  of  the  day?" 
"Yes." 


MANAGING    CASES.  39 

"And  often  burned  gas  in  dark  days  of  the  year?" 
"Yes." 

"And  took  no  special  notice  of  defendant  that 
morning?"     "No,  sir." 

"And  could  not  quite  be  certain  about  this  particular 
person  getting  that  check,  as  you  would  be  if  you  had 
made  it  to  your  own  employer?"     "Oh,  of  course  not." 

"The  matter  passed  off  and  no  questions  were 
asked?"      "None  whatever." 

"No  parley?"      "No,  sir." 

"Your  bills  are  paid  promptly?"      "Yes,  sir." 

"This  was  no  exception?"      "No,  sir." 

"In  your  busy,  methodical  way,  you  don't  stop  and 
question  people  who    bring   receipted    bills    for   pay 
ment?"     "No,  sir." 

"That  is  your  reason  for  not  being  quite  as  sure 
about  the  transaction?"     "Exactly." 

"Then  you  would  be  more  certain  if  your  father, 
brother  or  employer  had  called?"  "Yes,  sir,  I  think 
I  would." 

"So  on  your  oath  now  you  state  it  as  a  belief  and  not 
so  much  an  absolute  identification,  beyond  all  possibili- 
ty of  a  doubt?"     "  I  think  so,  yes  sir." 

"You  are  not  willing  to  swear  to  a  positive  certainty 
that  you  could  not  be  mistaken?"  "  No,  sir;  I  may 
have  been,  but  don't  think  I  was." 

"Do  you  swear  you  might  have  been?"  "Yes; 
possibly." 

This  is  the  stopping-place  ordinarially  (but  beware, 
he  may  know  it  and  brace  up),  so  go  on.  "I  think  you 
did  not  even  stop  to  call  the  young  man  by  name,  did 
you?"      "No." 


40  TRIAL    PRACTICE. 

"Nor  notice  specially  more  than  generally  a  man  re- 
sembling defendant?"  "  I  turned  half  round  and 
glanced  at  him  and  went  on  and  wrote  the  check." 

"To  bearer?"     "Yes." 

"And  he  left?"     "  Yes  sir." 

This  dulls  the  edge  and  helps  in  the  argument,  which 
is,  of  course,  that  it  is  not  who  may  have  called  with 
the  check  and  perpetrated  the  swindle,  but  who  did 
call  beyond  all  reasonable  doubt.  The  reasonable 
doubt  is  here  made  by  the  people's  witness,  who  has 
been  coaxed  by  a  series  of  easily-answered  questions, 
to  answer  and  tell  the  real  truth  and  probably  no 
more. 


CHIEF  JUSTICE  WAITE  AND  HIS  CLIENTS.  41 


CHAPTER  V 


CHIEF  JUSTICE  WAITE  AND  HIS  CLIENTS. 

Chief  Justice  Waite  was  once  a  country  lawyer,  with 
a  small  practice,  but  a  resolute  will  to  do  justice  to  bis 
clients.  He  lived  in  Maumee,  Ohio,  and  first  collected 
accounts  and  bills  for  New  York,  Boston,  and  Cincin- 
nati merchants.  It  was  a  time  of  long  credit,  and  ex- 
changes of  produce  for  goods  was  the  country  mer- 
chants' chief  means  of  payment. 

They  required  time  to  turn  themselves,  and  young 
Waite  accepted  their  installments  and  gave  them  their 
extensions.  It  came  to  be  known  that  if  any  one  could 
collect  a  debt  Waite  could  do  it.  This  was  his  Eastern 
reputation,  but  his  character  at  home  was  still  stronger. 
His  word  was  a  bond  of  indemnity  that  needed  no 
surety.  His  promises  were  rigidly  kept  and  he  firmly 
insisted  on  like  treatment  from  others. 

Gradually  he  became  active  in  Justice  practice,  then 
in  Circuit  Court  cases  ;  then  a  strong  counselor  to  firms 
of  importance.  His  manner  of  treating  clients  was  ad- 
mirable. When  one  called  with  a  case,  and  stated  the 
circumstances,  he  would  urge  him  to  repeat  the  points 
on  the  other  side,  and  what  they  claimed  to  be  just  in 
the  matter.     Then,  before  advising  suit  or  defense,  he 


42  TRIAL    PRACTICE. 

insisted,  as  a  deciding  point,  that  he  must  know  the 
case  as  it  really  was,  and  not  as  the  client  wanted  it 
to  be. 

Seeing  themselves  practically  placed  in  a  lawsuit  be- 
fore Judge  Waite — for  he  first  made  himself  judge  of 
office  cases — they  confided  their  facts  and  relied  upon 
his  judgment,  which  went  throughout  Ohio,  and  later, 
won  him  national  fame  in  his  excellent  work  in  the  Ge- 
neva award  case,  over  the  water.  It  was  there  his 
lucid  argument  was  much  admired  for  its  mastery  of 
details  and  the  ingenious  propositions  sustained.  He 
is  said  to  have  made  the  most  eloquent  address  of  any 
lawyer  on  that  contest  of  two  nations.  His  appoint- 
ment as  Judge  was  a  reward  for  that  high  service  and 
his  strong  qualities  of  common  sense. 

Such  is  the  career  of  a  lawyer  whose  conduct  is  a 
lasting  law  lecture  on  method  of  dealing  with  clients. 
In  point  of  success  there  is  but  one  higher  rank  than 
Chief  Justice  of  the  Supreme  Court  of  our  Union,  and 
that  rank  is  true  manhood  to  fill  it  honorably,  and  the 
good  name  and  loving  favor  of  his  friends  and  neigh- 
bors. His  character  for  honesty  at  home  and  upright 
ness  in  practice  gave  to  M.  R.  AVaitc  the  name  of 
deserving  the  place  lie  Jilh  with  such  honor  and  credit. 
This  is  more  valuable  than  to  lead  the  highest  court  in 
America,  in  which  he  is  first  in  questions  of  trial 
practice. 

He  began  poor,  but  soon  became  proverbially  reli- 
able in  this  way  :  he  became,  first,  efficient ;  second, 
•considerate,  and  always  reliable.  He  had  a  fine  fam- 
ily residence  in  Toledo  before  his  appointment,  and 
lived  very  nearly  upon  his  income.     Having  early  se- 


SEPARATING    WITNESSES.  43 

cured  a  paid-up  insurance  of  $20,000,  he  expressed  his 
confidence  in  the  future  of  his  family,  and  said  his  life 
should  be  devoted  to  his  profession,  without  regard  to 
money-making  beyond  his  expenses.  But  he  took 
great  pride  in  all  upright  and  successful  practice. 
When  appointed  by  President  Grant  to  the  Supreme 
Bench  he  had  already  made  a  bright  record  in  jury 
cases. 

He  is  both  a  just  Judge  and  a  great  advocate.  The 
real  lesson  in  the  life  of  Chief  Justice  Waite  is  his 
rectitude  in  little  things.  He  never  wanted  trial  prac- 
tice on  the  wrong  side  of  litigation.  He  was  willing 
to  begin  low,  by  collecting  commercial  claims,  but 
even  in  this  he  was  just  and  reasonable.  Many  a  mer- 
chant was  tided  over  a  dark  pay-day  by  his  kindness, 
and  all  these  acts  of  justice  will  be  so  many  marks  of 
greatness, — for  it  is  always  true  in  law  that  the  f/ood, 
alone,  are  great. 

SEPARATING  WITNESSES. 

The  following  incident,  abbreviated  from  the  Apoc- 
rypha of  the  Bible,  is  of  great  benefit  to  many  in  prac- 
tice. It  should  be  read  in  full,  but  this  summary  will 
explain  the  salient  features  with  clearness  and  inter- 
est:  Joachim  was  a  rich  man  of  Babylon;  Susanna, 
his  wife,  had  two  children — was  good  and  very  beauti- 
ful. They  had  all  that  heart  could  wish.  In  their 
garden  was  a  rare  park,  and  through  it  ran  pure 
water. 

This  garden  was  the  place  of  holding  court  in  Baby- 
lon.    The  elders  then  were  judges.     There  were  two 


44  TRIAL    PRACTICE. 

priests — a  large  and  small  one.  Both  admired  Su- 
sanna, and  loved  her.  At  noon-day  she  often  bathed 
in  the  garden  stream,  and  one  day,  after  sending  her 
maids  for  towels  and  wash-balls,  she  was  left  alone 
by  the  water,  when  the  two  priests  saw  her  alone, 
they  sprang  from  a  thicket,  and  one  seized  her  by  the 
shoulder,  and  turning,  he  saw  the  other  in  con- 
fusion. 

Both  remained.  "  Consent  to  us,"  said  the  larger, 
and  she  consented  not!  They  threatened  to  report 
that  they  found  her  with  a  young  man,  and  such  an 
offense  Avould  mean  death  to  her.  Susanna  cried  out 
aloud,  "  O,  what  a  strait  am  I  in  !  If  I  consent  not, 
I  die  !  If  I  consent,  I  sin  against  God!  I ivill  not 
consent!"  And  she  burst  the  fence  doors  and  flew 
away,  and  they  cried  out  against  her.  And  the  people 
called  for  a  trial. 

She  came  to  the  court-yard  attended  by  her  father, 
mother  and  kindred.  She  was  delicate,  and  very  beau- 
tiful, and  she  was  deeply  veiled.  The  priest  said, 
"  Eemove  the  veil,"  and  seeing  her  beauty  the  people 
wept.     She  looked  up  to  heaven,  and  trusted  the  Lord. 

They  told  their  story  of  finding  her  at  high  twelve 
with  the  young  man,  who  embraced  her;  that  they 
seized  her,  and  he  sprang  away.  The  people  believed 
it,  for  elders  were  judges  ;  and  they  condemned  her  to 
death.  Then  she  cried  with  a  loud  voice:  "Lord, 
Thou  knowest  it  is  all  false  !  Deliver  me  from  mine 
enemies."  But  they  proceeded  to  the  place  of  execu- 
tion. 

Then  Daniel,  a  young  lawyer,  said  :  "  What  fools, 
to  condemn  on  such  evidence  !    Come  back,  and  try  the 


TACT    AND    SKILL.  45 

case  legally."  They  went  back,  and  Daniel  said, 
"  Separate  the  witnesses."  Then  the  priests  testified 
one  at  a  time.  The  big  elder  was  sworn  first,  and,  when 
leaving  the  stand,  Daniel  said  :  "  Under  which  tree  in 
the  garden  did  it  happen?  " 

"Under  the  holm  tree." 

"Stand  aside,"  said  Daniel,  and  called  the  little 
elder,  who  told  the  same  story  through,  and  was  about 
leaving,  when  Daniel  said  :  "  Stav  !  Under  which  tree 
did  you  see  them  together?"  He  hesitated,  and  said  : 
"Under  the  palm  tree"  (in  an  opposite  side  of  the 
garden ) . 

"  Thou  hast  also  lied,"  said  Daniel.  And  the  peo- 
ple arose  and  put  both  priests  to  death,  they  having 
convicted  themselves  of  conspiring  to  kill  an  innocent 
woman.  Then  Daniel  became  a  great  advocate  (with  a 
splendid  practice)  in  Babylon.  Susanna  was  all  the 
more  respected  as  a  virtuous  and  upright  woman — 
even  one  who  could  resist  temptation  from  her 
priest. 

This  incident  is  doubtless  Shakespeare's  foundation 
for  "A  Daniel  come  to  judgment,"  in  the  "Merchant  of 
Venice."  It  forcibly  illustrates  the  power  and  use  of 
separating  witnesses  on  a  trial,  better  than  a  dozen 
pages  could  define.  It  applies  more  to  criminal  than 
civil  cases,  but  in  all  assaults  and  general  accident 
eases,  should  be  used  and  remembered. 

TACT  AND  SKILL. 

All  that  can  be  read  in  text-books  will  fail  to  de- 
scribe very  many  little  things  that  happen  in  a  court 


46  TRIAL    PRACTICE. 

trial.  Books  never  foretell  of  ill-temper,  blunders, 
and  halting  witnesses.  The  best  that  can  be  learned 
of  the  ablest-tried  cases  will  leave  an  unwritten  history 
in  every  lawsuit,  where  some  little  thing,  happily  used, 
has,  or  may  have,  turned  the  verdict. 

Tact  in  management  will  foresee  evil,  and  avoid  it. 
Watch  with  alertness  for  a  lucky  turn,  and  use  it  to  the 
right  advantage.  Most  people  learn  soon  enough  af- 
terwards what  would  have  benefited  their  case,  if  aptly 
applied  in  season.  Skill  has  more  to  do  with  arrange- 
ment and  order  of  happy  things,  and  keeping  them  in 
form  to  use  with  a  jury  in  argument,  but  the  lack  of 
experience  and  careful  study  will  allow  man}'  a  point 
in  practice  to  slip  by  unnoticed  that  the  artful  would 
apply  to  advantage.  This  little  difference  in  skill  is 
what  people  pay  for.  Little  dark  places  cleared  up, 
little  impressive  acts  or  words  of  witnesses  noted,  lit- 
tle circumstances  or  sayings  that  stand  out  from  the 
rest  with  emphasis,  need  grouping  like  a  coiled  cable, 
and  italicising  with  force  by  skillful  usage,  that  trained 
thinking  and  long  practice  sives  to  the  diligent.  Genius 
may  reach  all  at  a  single  bound,  but  most  lawyer* 
learn,  in  good  season,  that  genius  at  the  bar  is  found  to 
be  like  a  keen  razor,  of  excellent  material  and  superior 
finish.  Genius,  in  anything,  is  generally  crude,  and 
gains  by  experiment.  The  greatest  genius  may  have 
poor  application,  and  turn  out  badly.  There  are  more 
studious  plodders  on  the  bench  and  in  the  upper  story 
of  law  than  men  of  original  brilliancy. 

The  nature  of  law  labor  is  such  that  skill,  learning, 
and  tact  are  all  qualities  requiring  study.  It  is  not 
the  study  of  books  alone.     How  few,  indeed,  could  be 


ADKOITXESS    AND    ACUMEN.  47 

read  in  a  life-time.  It  is  the  study  of  men,  of  things, 
scenes,  effects,  causes,  and  results,  that  grow  and  fol- 
low naturally  from  consequences.  A  lawyer,  of  all 
men,  must  think,  and  think  constantly,  through  every 
stage  of  his  case,  and  train  his  mind  for  adverse  turns 
of  evidence. 

ADROITNESS  AND  ACUMEN. 

Some  time  in  the  course  of  every  trial  will  come  the 
fine  turn  of  the  scale-balance,  where  a  little  thing  said 
or  unsaid  may  unite  or  divide  a  jury.  I  never  had 
much  confidence  in  tricks  and  arts  deceptive,  but  there 
are  turning  points,  like  guide-boards,  that  mark  the 
progress  made,  and  show  the  true  direction.  A  man 
that  saves  his  points  is  like  one  who  saves  his  grain  for 
use  in  winter,  rests  his  team  at  a  hill-top,  or  feeds  them 
for  strength  in  their  journey.  Many  lawyers  explode 
their  wit  too  soon,  and,  like  hunters  firing  at  random, 
scare  away  their  game.  It  may  be  wit,  it  may  be  elo- 
quence, possibly,  in  the  examination  of  witnesses,  but 
it  will  be  somewhere  that  the  ripe  fruit  will  show  be- 
tween the  leaves,  and  can  be  saved  for  a  client  if  picked 
in  season. 

Just  what  to  do  and  when  to  do  it,  is  something  that 
a  sixth  sense  must  teach  a  counsel.  It  comes  to  the 
lawyer  through  practice,  but  practice  must  be  polished 
to  discern  it.  The  sense  of  fine  work  in  lawsuits  is  a 
cultivated  trift  that  increases  with  use  like  the  skilled 
surgeon,  the  trained  musician,  or  the  accomplished 
scholar. 


48  TRIAL    PRACTICE. 

URBAXE  DEPORTMENT. 

The  long-used  habit  of  polished  language  and  chaste 
expression,  with  grace  of  gesture,  ease,  and  deference 
of  manner  to  superiors,  and  general  courtesy  to  all,  is 
a  branch  of  legal  training  that  belongs  to  the  law,  but 
only  a  few  lawyers  ever  attain  it.  Manners  are  not 
well-taught  in  books  ;  they  are  learned  by  experience 
and  observation.  It  is  that  mysterious  something  which 
denotes  gentleness  combined  with  strength.  It  need 
not  be  feminine  or  weak,  nor  too  soft,  nor  very  yield- 
ing. This  is  quite  the  other  extreme.  The  force  of  a 
blow  is  not  increased  by  a  rough-edged  blade.  The 
voice  of  a  speaker  may  be  penetrating  and  forcible 
without  wounds  or  injuries. 

All  that  we  admire  of  speaking,  singing,  or  acting, 
is  grace,  force,  tone,  and  naturalness.  The  mirror, 
held  to  nature,  need  not  reveal  a  giant  in  muscle  to 
show  a  rare  musician  or  a  Grecian  athlete  for  an  elo- 
quent orator.  Small  instruments  make  sweet  music. 
Demosthenes,  the  father  of  oratory,  was  a  striking 
example  of  one  lacking  in  form,  but  equipped  in  style 
and  finish.  His  brilliant  successor,  Cicero,  was  more 
graceful  and  accomplished,  but  only  after  years  of 
training  and  the  daily  study  of  words,  arts,  and  sub- 
jects beyond  the  rules  of  other  orators.  Cicero  and 
his  successor,  Erskine,  attained  greatness  by  the  polish 
of  their  genius,  the  subtlety  of  their  sayings  that 
pierced  to  the  hearts  of  their  greedy  hearers  like  the 
words  of  Mark  Antony  over  Ccasar's  body  ;  a  speech 
tit  for  a  model  of  all  times  for  its  caustic  urbanity, 
•cogent  in  reasoning,  powerful  in  argument,  eloquent 


STARTING    IN    LAW.  49 

in  pathos,  deep  in  logic,  powerfully  convincing  and 
couched  in  language  even  unoffensive  to  those  it  would 
annihilate.  Urbanity  rules  the  tongue,  and  tempers 
the  hands  and  actions  of  a  speaker.  The  man  that 
rules  his  temper,  and  controls  his  manner,  has  a  better 
prospect  for  long  life  and  peaceful  prosperity,  than 
one  whose  selfishness  leads  to  constant  friction.  But 
few  lawyers  ever  acquire  a  razor  blade  polish  in  court 
room  deportment. 

Sooner  or  later  the  majority  of  men,  tried  by  con- 
tests of  an  exasperating  nature,  yield  in  debate  to  trials 
of  sarcasm  or  side  remarks,  which  are  trifling  in  them- 
selves, yet  telling  on  their  constitution,  and  creating 
enemies.  It  was  the  bitterness  of  Blaine,  that  over- 
come him  with  enemies.  It  was  the  urbanity  of  Gar- 
field, that  made  him  a  leader ;  the  imperial  bearing  of 
Conkling,  that  let  his  enemies  walk  over  him  in  vic- 
tory ;  and  this  is  a  lesson  to  all  advocates.  To  reach  a 
happy  medium  that  will  neither  excite  bitterness,  nor 
show  weakness,  force  with  gentleness,  power  without 
arrogance,  intensity  without  irony,  and  finish  without 
affectation,  strength,  symmetry  and  beauty,  either  of 
which  omitted  will  render  the  other  less  effective. 

STARTING  IN  LAW. 

Training,  courage,  patience  and  aptness  for  the 
business  are  the  essential  elements  of  success  in  law 
practice.  If  one  has  not  discernment  enough  to  know 
how  well  he  can  fill  these  requirements  it  is  better  to 
wait  awhile,  or  learn  from  another  what  is  lacking. 

With  a  thorough  training,  courage  should  follow 
easily,  for  no  one  is  strong  without  knowing  it,  and 

(4) 


50  TRIAL   PRACTICE. 

strength  comes  of  confidence  in  ability  to  do  what  we 
undertake.  Then  with  energy  and  work  well  done, 
new  cases  will  follow,  and  business  will  grow  like  a 
tree,  with  new  branches  from  every  limb.  If  one  is 
willing  to  wait  the  growth  of  an  orchard,  the  develop- 
ment of  an  enterprise,  or  any  ordinary  matter  that 
requires  time,  he  should  be  willing  to  take  law  busi- 
ness as  it  comes —  thankfully.  Actors  are  all  willing 
to  play  subordinate  parts  many  years  in  starting  till 
suddenly  called  in  to  replace  their  seniors,  when  they 
often  display  their  earliest  talents  by  accident. 

Lawyers  are  watched  in  court  trials  very  much  like 
actors  in  a  play,  and,  indeed,  many  are  superior  to 
actors,  and  the  real  tragedies  shown  to  juries  are  supe- 
rior to  the  imitations  of  the  mimic  stage.  A  few  well 
cut  knots  of  controversy,  a  few  well  turned  periods  of 
argument,  a  clear  insight  into  the  puzzling  problems, 
will  soon  place  a  lawyer  in  his  proper  rank  before  any 
community.  Learning,  language,  manner,  familiarity 
with  facts,  and  ingenuous  handling  of  half-a-dozen 
witnesses  will  do  the  work.  The  best  talent  of  a  law- 
yer is  common  sense — a  basis  to  which  all  cases  finally 
must  come  before  the  last  court  leaves  them.  What  is 
good  sense  is  always  good  law,  and  counsel  who  act 
and  advise  on  this  principle  must  succeed  in  keeping 
their  clients  out  of  petty  litigation,  which  is  inval- 
uable. 

The  next  best  gift  is  foresight  —  the  gift  of  telling 
how  reasonable  men  will  judge  of  a  contract  or  contro- 
versy—  the  ability  to  frame  a  correct  theory  of  a  de- 
fense or  prosecution.  Without  this  intuitive  knowl- 
edge, few  can  reach  the  right  beginning  in  practice. 


AX    INSTANCE.  51 

It  is  born  with  a  lawyer.     If   not,  he  was  born  for 
another  calling. 

The  third  gift  is  clearness.  Things  that  come 
clearly  to  a  teacher  can  be  as  clearly  explained,  but 
we  never  know  well  what  we  cannot  tell  to  others. 
The  very  fact  that  it  is  not  clear  to  the  speaker,  ren- 
ders the  listener  all  the  more  muddled.  Some  are  so 
gifted  in  clearness  that  they  send,  as  it  were,  a  ray  of 
electric  light  through  their  trials,  and  satisfy  court, 
jury  and-  client  of  the  certainty  of  their  positions. 
Memory  goes  to  make  up  clearness.  So  many  details 
are  to  be  kept  track  of  that  memory  is  a. rich  gift  in 
trials,  and  one  that  cannot  be  over  cultivated.  It 
grows  by  use,  and  strengthens  by  practice.  With  all 
eyes  on  the  actor,  his  lines  are  important.  Neither 
wit,  grace  nor  appearance  can  replace  matter  and 
memory  of  the  points  in  contest.  As  the  actor  wins  a 
recall,  so  must  the  lawyer  by  influence  on  all  in  hear- 
ing. His  form,  manner,  voice,  matter  and  ingenuity, 
each  form  a  part,  and  aid  in  victory. 

AX   INSTANCE. 

In  a  Kentucky  murder  case  great  excitement  pre- 
vailed, and  hundreds  of  armed  men  thronged  around 
the  counsel.  Judge  Curtis  defended  :  he  felt  the  sen- 
timent of  conviction  in  the  air.  The  danger  of  lynch- 
ing was  not  trifling.  With  subdued  tones  and  careful 
diction,  he  opened  in  an  eloquent  tribute  to  the  char- 
acter of  women,  for  charity,  long  suffering  and  love 
■of  mercy.  Tears  fell  freely,  for  on  that  ground  no 
one  disputed  the  speaker.     The  court  was  hushed  and 


52  TRIAL    PRACTICE. 

silent,  till  snow  flakes  could  be  almost  heard  to  fall. 
The  crowded  house  grew  to  a  house  of  admirers  of  the- 
modest  beauty  of  statement,  as  well  as  of  the  doctrine 
taught.  All  eyes  met  the  speaker.  He  stood  in  the 
crowded  court  room  like  an  athlete  in  an  amphitheater. 
His  danger  increased  when  the  second  passage  was 
reached,  where  his  client  had  been  berated  for  acts  of 
conduct  in  his  early  love,  and  a  fair  chance  come  for  a 
strong  turn  on  his  adversary.  The  speaker  wisely 
foresaw  two  answers,  the  bitter  and  the  sweet ;  he 
chose  the  latter  ;  he  regretted  that  his  noble  brother 
should  so  far  forget  his  high  calling  as  to  make  sport 
of  the  early  affections  of  his  client.  True,  he  stood 
solitary  and  alone,  a  childless  man,  and  when  he  died  it 
would  be  the  last  of  his  line.  True,  he  had  years  be- 
fore met  and  won  a  fair  Kentucky  lady,  and  but  for 
her  parents'  wishes,  they  would  have  been  united,  and 
great  God,  said  the  speaker,  can  it  be  that  to  please  a 
miscellaneous  audience,  this  holiest  of  earthly  affec- 
tions is  to  be  held  up  to  scorn  and  ridicule.  In  a  State 
of  chivalry  and  bravery  like  Kentucky,  can  it  enter 
into  the  heart  of  a  man  humane,  to  trifle  with  the 
most  sacred  affections   of  man   or  woman. 

The  ice  melted,  the  audience  were  his.  The  influence 
of  courtesy  and  nature  was  sublime.  The  defendant's- 
life  saved  by  it.  This  silent  influence  that  brings  out  a 
recall,  a  half  cheer,  a  sentiment  of  belief  in  the  audi- 
ence is,  after  all,  the  art  of  oratory.  It  conciliates,, 
captures,  convinces,  wins  and  controls  the  judgment  of 
a  jury.  It  is  superior  to  questioning  and  brow-beat- 
ing bad  witnesses,  and,  coming  from  one  of  known  in- 
tegrity and   sincerity,  it  weighs   with  a  court  and   a 


AN    INSTANCE.  ~>3 

court  room.  For  the  court  is  one  of  an  audience,  and 
•wishes  to  do  about  the  fairest  thing  after  all  that  the 
case  admits  of.  He  may  pound  with  his  gavel  at  the 
crowd's  applause,  but  his  heart  applauds  with  the  rest. 
The  responses  of  heart  to  heart  are  the  same  with 
judges  as  with  auditors.  Strong  argument,  earnest 
and  eloquent  words,  are  never  lost  in  the  hearing  of 
reasonable  men.  It  may  not  always  secure  an  acquit- 
tal, and  may  lead  to  a  disagreement  or  sympathy 
enough  for  a  lighter  sentence.  A  man  whom  the  peo- 
ple love  and  respect  is  not  likely  to  have  a  long  pun- 
ishment inflicted  as  one  with  few  friends  and  a  weak 
advocate. 


54  TRIAL    PRACTICE. 


CHAPTER  VI. 


WINNING  HARD  CASES. 


Man  never  met  a  more  difficult  case  to  contend  with 
than  the  Buford-Elliott  defense  in  Owenton,  Ky.  in 
1879.  The  life  of  Col.  Buford  is  strangely  romantic. 
His  family,  habits  and  home  troubles  all  form  a  back- 
ground of  the  fearful  deed  he  accomplished,  and  yet 
he  is  free  and  clear  to-day  as  any  Kentuckian.  Skill! 
and  will  of  counsel  cleared  him.  His  deliverance  came- 
from  absolute  determination  of  counsel.  Other  men 
have  been  saved  from  the  gallows  by  fortuitous  cir- 
cumstances, but  Buford's  case  was  marvelous.  Time 
without  limit  was  spent  in  preparing  for  trial  and 
shaping  public  sentiment,  or  rather  dulling  the  first  in- 
tense bitterness  to  the  accused. 

Knowledge  was  used  in  the  smallest  detail,  and  no 
stone  left  unturned  on  the  insanity  defense  which 
finally  resulted  in  Buford's  release.  It  would  be  im- 
possible to  detail  each  step,  but  think  of  ninety  days 
in  preparation? 

Underwood,  in  Michigan,  actually  killed  Charlotte 
Pridgeon,  and  within  a  year  crossed  to  England,  hav- 
ing first  been  acquitted  of  murder  by  reason  of  insan- 
ity, and  later  released  as  not  liable  to  be  so  held  in 


WINNING   HARD    CA6ES.  55 

bondage  when  no  jury  had  been  sworn  to  convict  on 
such  a  charge.  Underwood  was  English,  and  had  an 
English  jury. 

T'remain  cleared  Stokes  by  an  over-mastering  speech 
and  a  determined  effort  to  bias  the  jury,  which  worked 
on  the  theory  that  the  slain  was  a  dangerous  man  to 
inhabit  the  earth.  In  fact,  the  victim  was  on  trial 
more  than  the  accused.  The  amount  of  work  in  trial 
after  trial  is  wonderful  to  display  on  a  single  charge. 
Ingenuity  of  counsel  cleared  Gov.  Scott,  and  appeals 
to  what  the  jury  would  have  done  placed  where 
Sickles  and  McFarland  were,  cleared  both  prisoners. 
The  single  period  of  James  T.  Brady  in  defense  of 
Sickles  was  enough  to  melt  the  hearts  of  a  dozen 
juries.  The  masterly  appeal  and  able  argument  of 
Graham  in  McFarland  case,  is  admitted  to  have  saved 
his  client.  In  it  are  four  great  speeches,  condensed  in 
a  single  effort,  which  clearly  shows  the  value  of  accu- 
mulated arguments.  In  the  Sullivan-Hanniford  case, 
at  Chicago,  defense  relied  upon  an  attempt  to  strike 
Mrs.  Sullivan  by  deceased,  and  so  skillfully  was  it 
placed  before  the  jury,  that  not  guilty  was  the  ver- 
dict. 

In  the  trial  of  Garfield's  assassin,  excellent  ability 
was  displayed  for  the  people.  When  Judge  Porter, 
in  an  ingenious  cross-fire  with  the  prisoner,  belit- 
tied  himself  that  he  might  show  off  the  sagacity  of 
the  accused,  who  thought  more  of  his  passages  at 
arms  with  counsel,  than  saving  his  life  by  a  little  more 
foolishness  and  less  ability.  A  rare  point,  too,  was 
turned  by  Judge  Porter  in  overcoming  the  inborn 
prejudices  of  several  jurors  who  cared  very  little  more 


56  TRIAL   PRACTICE. 

for  Garfield  than  other  citizens,  and  objected  to  capi- 
tal punishment. 

To  this,  counsel  closely  addressed  the  argument  that 
while  chivalrous  men  like  Booth,  might  in  a  moment 
of  some  curious  freak,  kill  a  human  being,  still,  Booth 
was  not  like  the  creature  before  them,  who  was  held 
up  in  all  his  littleness,  meanness,  wickedness  and  utter 
lack  of  manhood  ;  all  the  names  and  things  that  could 
cover  a  creature  with  infamy  were  used  with  wisdom, 
and  when  finally  every  juryman  had  learned  to  hate 
the  crime  and  criminal,  Porter  rested  and  won. 

These  are  large  cases,  took  high  priced  talent,  and 
resulted  generally  as  they  should. 

The  defense  of  Beecher  was  about  as  ably  made  as 
that  of  either  instance  mentioned.  The  cool  and  con- 
siderate effort  and  excellent  temper  of  Mr.  Evarts,  the 
artful  array  of  circumstances,  were  often  conclusive 
with  the  jury,  while  the  great  heart  of  Mr.  Beecher 
made  him  too  noble  in  the  eyes  of  the  jury  to  brand 
with  crime,  and  he  was  practically  acquitted. 

FORCE  AND   MODULATION. 

A  low  tone  in  statement,  a  low  tone  in  asking  a  ver- 
dict, a  medium  tone  in  explaining  away  objections  to 
your  theory,  brings  a  strong  and  forcible  vindication  of 
your  side.  Reserve  force  is  best  shown  by  cool  de- 
termination. Men  of  iron  never  need  to  bluster  ;  they 
assert  their  views  and  execute  them .  Grant,  Napoleon, 
and  AVellington,  were  of  this  class.  It  is  evidence  of 
weakness  to  express  all  of  one's  feelings  at  once  in 
an  argument.     It  is  often  said  of  a  great  speaker  :  He 


FORCE    AND    MODULATION'.  01 

begins  very  low.  This  shows  his  desire  to  gain  close 
attention.  Again,  he  talked  like  a  whirlwind  at  such  a 
point,  and  when  he  closed  you  could  hear  a  feather 
fall,  he  was  so  intensely  interesting.  I  have  even 
known  of  speakers  that  seemed  to  chain  the  audience 
to  their  seats  for  several  seconds  after  they  were  at 
liberty  to  separate.  The  spell-bound  speeches  are 
always  best  in  law  suits.  When  one  can  reason  in 
whispers  and  be  heard,  he  and  his  hearers  are  not  far 
apart.  It  is  a  magnetic  method,  and  raises  no  resent- 
ment. It  is  the  height  of  eloquence  so  to  use  it  in 
moderation  and  reserve. 

At  a  murder  trial,  in  southern  Indiana,  an  eloquent 
eounsel  had  left  a  jury  ill  tears  —  in  fact,  all  in  the 
court  room  were  moved  by  his  touching  appeal,  and 
when  his  opponent  arose  and  began  a  reply,  his  emo- 
tion was  shown  so  distinctly  in  tone  and  manner,  that 
every  one  seemed  to  believe  in  the  prisoner's  acquittal. 
But  the  sublime  moment  had  not  come,  and  counsel 
was  only  building  a  bridge  on  which  he  could  carry 
over  the  jury  to  the  other  side.  He  knew,  as  salesmen 
know,  that  it  is  unwise  to  be  too  hasty  in  persuading 
customers  to  take  their  wares.  He  knew  that  he  must 
first  show  his  opinions  were  not  so  far  from  theirs. 
He  knew  that  human  nature  was  aroused,  and  he  must 
go  with  it  to  a  reasonable  turniug  point.  From  low 
tones  of  kindness  and  sympathy,  he  gradually  turned 
to  questions  of  duty,  and  the  reason  of  trials  like  the 
one  they  were  engaged  in  hearing,  and  about  to  deter- 
mine. Of  its  effect  upon  the  community,  and  upon 
their  own  rights  as  citizens.  In  a  few  moments  he  had 
taken  them  home,  and  showed  them  the  value  of  per- 


58  TRIAL   PRACTICE. 

sonal  security — of  the  necessity  for  the  law's  protec- 
tion. Then  he  suddenly  drew  a  picture  of  the  danger 
if  laws  were  violated,  and  tears  should  be  allowed  to 
screen  the  guilt  of  the  offenders.  Then  with  touching 
words,  he  regretted  his  duty  and  theirs  to  lead  one  pos- 
sibly, who  himself  had  in  moments  of  anger  brought 
sorrow  and  disgrace  upon  those  who  must  now  bear 
the  natural  consequences  ;  and  in  such  a  strain  ended 
his  excellent  argument,  winning  a  case  for  the  people 
by  force  and  moderation,  that  he  could  easily  have  lost 
by  over  zeal  in  his  closing  address  to  a  jury  already 
predisposed  to  acquit  the  defendant. 

RESERVE  FORCE. 

In  a  discussion  before  a  court  of  judges  it  is  a  good 
plan  to  start  with  a  striking  and  important  case,  one 
on  which  there  can  be  no  question  or  dispute,  and  as 
the  argument  advances  other  less  positive  cases  may 
be  examined  for  and  against  your  position.  This  brings 
attention  to  a  merit  on  your  side,  and  compels  atten- 
tion, while  a  few  weak  cases  may  prejudice  the  court, 
and  lead  to  a  bias  too  early  in  the  discussion.  In 
the  end  and  beginning  of  every  law  argument,  one  or 
more  good  cases  should  be  cited.  Trifles  turn  a  case  in 
such  matters,  and  the  last  words  said  may  be  impres- 
sive. There  need  be  no  fawning  or  cringing,  and  yet 
great  respect  to  court's  discussions.  Let  it  be  known 
and  follow  the  rule,  that  one  evil  ruling  will  reach  the 
court  of  last  resort  before  you  surrender. 

Right  here,  let  me  say,  that  every  lawyer  is  in  duty 
bound  to  follow  the   side  he  honestly  believes  to  be 


RESERVE    FORCE.  59" 

right  through  the  highest  court  for  settlement,  not  for 
spite,  but  for  victory,  and  respect  of  courts  them- 
selves. 

Counsel  who  insist  on  their  rights  generally  secure 
them.  It  need  not  be  done  in  the  spirit  of  vengeance 
or  malice,  but  should  be  a  rule  of  practice  to  win 
every  case  that  has  a  winning  side  to  it.  To  do  this,  the 
first  step  is,  caution  in  taking  cases;  the  next  thing  is 
to  see  that  the  witnesses  are  such  as  you  believe  and 
can  depend  upon,  and  men  or  women  who  will  tell  the 
whole  truth,  and  having  told  it,  stick  to  it.  Then,  in 
the  very  best  of  temper,  with  a  handy  brief,  in  which 
not  only  cases  are  cited,  but  the  nature  of  the  case 
and  the  principle  decided.  Attend  to  each  point  as  it 
goes  in  evidence,  for  the  impression  made  as  witnesses 
testify  is  even  more  lasting  than  argument.  It  is  a 
first  impression,  and  one  that  juries  are  inclined  to 
remember.  Think  of  a  half-dozen  supervisors,  read 
and  intelligent  at  the  age  of  sixty,  all  having  an  abid- 
ing belief,  and  asked  to  change  it !  This  is  a  great  ex- 
pectation. Men  of  fixed  opinions  change  them  reluct- 
antly. It  is  very  much  better  if  they  have  not  said 
"no"  mentally  to  your  position  before  they  listen  to 
an  argument.  If  you  have  been  keen  enough  to  hide 
your  best  points  and  reserve  them  for  argument,  so 
much  the  better  for  your  success. 

There  is  a  kind  of  fascination  in  a  well  planned  trial 
that  leads  to  constant  discovery  of  new  truth,  as  if  it 
came  out  unawares.  An  art  that  conceals  the  art  of 
trying  to,  and  yet  reveals  the  plainest  truth. 

Take  a  bad  witness  half  way  to  his  seat ;  recall  this 
way:  "One  moment;  what  was  the  condition  of  the 


<60  TRIAL   PRACTICE. 

four  when  you  first  went  in?  or,  what  was  the  condi- 
tion of  the  room  as  to  being  shaded  with  blinds  ? ' ' 
"  Shady."  "That  darkened  it  a  little?"  "Yes." 
*'  Not  so  light  as  the  court  room  now?  "  "No,  sir." 
*'  You  could  not  tell  quite  as  certainly  who  called,  as 
if  one  had  called  whom  you  had  long  known?  "  "No, 
sir."  "  That  leaves  it  just  a  little  uncertain,  that  is, 
you  are  now  not  swearing  to  a  positive  certainty?" 
"No,  sir."  "  Then  you  admit  candidly  that  there 
may  jwssiblybe  a  mistake  about  this  being  the  real  per- 
son whom  you  believed  to  have  called  with  the  check?" 
*'  I  think  he  was  the  one."  "  Yes,  I  know,  still  you 
swear  that  you  may  have  been  mistaken?"  "Yes, 
sir."  This  is  the  finest  of  work.  The  reserve  force, 
the  unconscious  work,  the  foundation  for  an  argument 
that  if  a  witness  may  have  been  mistaken,  then  the 
jury  can't  take  the  risk  of  mistakes. 

LAWYERS  NOT  ON  TRIAL. 

It  is  a  mistake  to  abuse  a  brother  lawyer  in  trials. 
He  may  have  his  client's  story,  and,  believes  it.  He 
may  have  the  close  of  the  case,  and  turn  a  bad  point 
on  you  when  you  are  powerless  to  answer.  He  may 
represent  the  people  and  have  great  discretion  in  right 
to  nolle  pros.  He  may  have  personal  friends  on  the 
jury  who  but  for  the  attack,  would  be  with  your  side, 
and  now  will  stand  out  and  disagree,  causing  great  ex- 
pense and  annoyance,  and,  in  any  event,  he  is  not  on 
trial,  and  abuse  will  not  win  your  victory.  You  be- 
lieve in  your  theory  ;  he,  in  his,  and  each  has  a  right 
to  his  own  opinion.     In  fact,  he  is  hired  to  enforce  it 


LAWYERS    NOT    OX    TRIAL.  61 

by  all  laudable  means  at  command,  therefore  it  is  more 
pleasing  to  a  jury  to  do  as  Judge  Perrin  always  ad- 
vised :  treat  opposing  statements  as  possible  mistakes, 
and  seek  to  show  which  side  is  mistaken.  Juries  had 
much  rather  hear  this  argument  than  a  personal  wran- 
gle and  a  bitter  controversy. 


<G2  TRIAL    PRACTICE, 


CHAPTER  VII. 

ABOUT  TRIALS. 
DIRECT    EXAMINATION. 

State  to  the  jury  what  occurred,  is  the  clearest  pos- 
sible direction  to  testify.  State  what  next  occurred  ; 
what  was  said,  if  anything,  or  what  was  done  by  the 
parties.  Go  on,  and  tell  the  jury  in  your  own  words 
what  happened  in  your  presence. 

This  is  the  natural  road  to  truthfulness.  The  truth 
is  stronger,  when  most  direct.  Keep  to  the  line,  as 
hewers  say — never  mind  the  chips.  Look  well  to  the 
timber  you  are  making.  Unless  the  several  timbers, 
bricks  and  stones  of  a  building  are-  well  made  sepa- 
rately, they  match  badly.  Every  witness  is  a  timber 
to  be  used  in  building  your  case.  The  case  itself  is  its 
own  foundation.  What  you  do  is  to  build  it  out  of 
materials  that  join  and  become  symmetrical.  As  a 
builder  discards  bad  timber,  so  should  a  lawyer  keep 
away  all  bad  witnesses.  They  color  a  case  dreadfully. 
Three  or  four  good  witnesses  are  often  better  than  a 
half  a  score  of  indifferent  ones.  Never  put  on  a  man 
(if  you  can  avoid  it)  whose  face  will  carry  discredit  to 
41  jury-box.     Select  and  arrange  proof  to  be  interest- 


CRIMINAL    PROSECUTION.  63 

ino-.  If  a  few  line  looking  witnesses  are  seen  to  sup- 
port  one  side,  and  double  their  number  the  other,  it  has 
an  influence  in  forming  opinions.  Really,  cases  are 
won  as  you  go  along,  and  not  by  the  arguments.  The 
jury  hardly  wait  to  hear  the  facts  rehearsed.  They 
take  stock  in  a  case  as  it  goes  along.  It  is  not  in  num- 
bers, but  quality  and  candor  that  tells  the  story.  One 
truthful  man  may  be  believed  against  many.  Order 
your  forces  well,  always  with  a  view  to  clearness. 

CRIMINAL  PROSECUTIOXS. 

To  convict  one  of  crime,  it  must  be  shown  clearly 
(1)  that  a  crime  has  been  committed,  (2)  that  defend- 
ant could  have  done  the  deed,  (3)  that  he  had  a  mo- 
tive. Crime — opportunity — motive.  Human  belief  is 
such  that  some  crimes  are  too  shocking  to  be  credible. 
This  must  be  remembered,  but  with  it  bear  the  fact  that 
Prof.  Webster,  of  Boston,  could  and  did  commit 
a  most  dreadful  murder.  That  kings  and  queens  have 
committed  cruel  crimes,  that  seem  most  unreasonable. 
Seek  first  the  means  of  killing  or  robbing,  as  the  case 
may  be.  Analyze  the  deed  fully.  Study  the  possible 
motive  aud  opportunity.  One  to  two  witnesses  on  any 
point  is  sufficient,  but  beware  of  over  numbers  from 
the  defense. 

A  single  witness  to  an  important  conspiracy  case  was 
positive  that  he  overheard  a  man  tell  his  wife,  after  re- 
tiring for  the  night,  what  he  accomplished,  and  how 
far  certain  steps  have  been  taken,  and  proceeded  to 
state  facts,  apparently,  in  their  natural  order  to  com- 
pel belief  in  his  story.  He  was  cross-examined  with 
skill  and  caution  by  Wm.  H.  Seward,  and  grew  rather 


64  TRIAL    PRACTICE. 

flurried  and  impatient.  Later  in  the  case  this  link  was- 
completely  broken  by  the  fact  that  the  wife  was  not  at 
home,  but  a  hundred  miles  away  at  that  season,  while 
the  husband  and  wife  slept  in  the  chamber,  and  the 
supposed  bed-room  was  a  meal-room,  full  of  barrels 
and  boxes,  but  totally  void  of  bed  or  bedding.  As  a 
chain  is  no  stronger  than  its  Aveakest  link,  this  defend- 
ant was  acquitted. 

Another  rule  is,  never  to  rest  a  conviction  on  the 
unsupported  evidence  of  a  bad  witness,  or  an  accom- 
plice. Some  one  is  sure  to  learn  his  weakness,  and 
make  the  most  of  it.  The  conviction  of  criminals 
should  at  least  be  honest  and  fairly  sustained  by  evi- 
dences. In  the  words  of  Senator  Jacob  M.  Howard, 
"it  is  enough  for  counsel  to  deprive  one  of  property,  or 
rob  him  of  his  character  in  a  contest  for  his  client,  but 
when  it  comes  to  the  point  of  taking  away  his  liberty 
for  a  number  of  years  —  which  is  in  effect  his  life 
—  and  deprive  his  kindred  of  his  protection,  and 
brand  them  with  the  stigma  of  a  felon's  name,  it  is  far 
more  creditable  and  honorable  to  lose  a  case,  and  go  to 
one's  judgment  hereafter  without  the  tarnish  of  human 
blood  upon  his  garments,  for  committing  a  higher 
crime  than  the  accused  was  charged  with." 

I  conclude  this  theme  by  the  single  remark,  that  an. 
industrious  investigation  of  causes,  and  a  faithful  story 
of  the  crime,  is  enough,  and  the  whole  duty  of  the 
prosecution.  Things  that  may  be  urged,  and  arts  that 
should  be  employed  to  defend  a  criminal,  would  be 
often  cruel  to  apply  in  a  doubtful  conviction. 

In  the  famous  Stevens  Poisoning  Case  in  New  York, 
near  1856,  Chauncey  Shaffer,  for  the  prosecution,  was- 


CRIMINAL    DEFENSES.  65 

forced  to  analyze  the  earth  around  the  coffin,  the  metal 
nails  in  the  coffin,  the  shroud  and  the  body,  nearly  a 
year  after  interment,  and  actually  found  arsenic 
enough  to  poison  three  men,  in  the  stomach  of  the  vic- 
tim —  the  wife  of  the  defendant  —  to  convince  the  jury 
of  his  guilt.  This  was  one  of  those  cases  of  mysteri- 
ous death  from  short  sickness,  and  on  the  surface  no 
motive  of  guilt  to  confirm  suspicions. 

In  a  similar  northern  Michigan  case,  the  deceased 
was  a  consumptive,  whose  wife  had  received  attentions 
from  a  neighbor  before  her  husband's  case  Avas  given 
up  as  hopeless.  A  neighbor  noticed  a  small  paper  of 
poison  on  the  mantle,  and  wondered  why  it  was  left 
carelessly  in  reach,  when  soon  after  she  saw  it  was 
missing,  and  remarked  about  it.  A  little  later  in  the 
day,  the  wife  said,  "  Why,  you  were  mistaken,  here  is 
the  rat  poison,  right  here  before  your  eyes,  on  the 
mantle."  (Lately  placed  there.)  The  circumstances, 
placed  with  the  recent  death  of  the  husband,  led  to  in- 
vestigation, conviction  and  life  sentence  for  murder. 
It  need  not  be  urged  that  circumstances  are  swift  wit- 
nesses, but  they  require  minuteness  in  detail  to  place 
them  in  an  unbroken  chain  of  evidence.  A  missing 
link  destroys  their  potency. 

CRIMINAL  DEFENSES. 

Crimes  are  usually  surrounded  by  mysterious  circum- 
stances. These  must  be  well  learned  by  defendant's 
attorney.  To  learn  them  go  at  once,  and  measure  <  very 
spot  with  the  eye,  and  take  in  the  situation.  This  will 
be  convenient  in  drawing   out  evidence,  and  may  lead 


6(5  TRIAL    PRACTICE. 

to  an  acquittal.  Take  an  instance  :  Two  men  quarrel  ; 
they  threaten  each  other  ;  they  separate.  After  many 
days  they  meet,  fire  shots,  and  one  is  killed.  A  wit- 
ness says  he  saw  the  killing.  This  with  the  avowed 
malice  is  a  strong  case,  and  requires  an  ingenuous  de- 
fense. Counsel  visits  the  ground,  sees  the  uneven- 
ness  ;  finds  that  to  witness  the  shooting,  one  must  be 
in  the  right  position.  He  gathers  from  one  who  came 
early  to  the  scene  what  words  were  said,  and  how  each 
acted — slayer  and  slain.  This  is  veiy  important.  It 
may  reveal  revenge,  and  may  show  self-defense. 

Trial  is  called.  The  accused  is  young,  a  blonde,  full 
of  warm  impulses.  The  first  care  is  that  he  shall  be 
truthful,  and  surrounded  with  as  much  influence  for 
good  as  possible.  If  his  character  is  shady,  let  it 
alone.  If  good,  enlarge  upon  it,  and  show  by  ten  or 
more  that  it  is  good.  The  presence  of  six  good  citi- 
zens, flanked  by  friends  and  relatives,  is  a  strong  force 
at  such  a  critical  period.  The  jury  will  assume  that 
every  witness  for  the  defense  wants  an  acquittal. 
They  are  right.  Juries  read  best  between  the  lines. 
They  calculate  on  public  sentiment. -  In  all  trials  the 
public  view  is  often  the  hasty  one.  They  are  shocked 
by  the  crime,  and  have  not  weighed  the  circumstances. 
This,  of  course,  is  not  a  crime  for  money.  That 
must  appear  early  ;  the  jury  should  be  selected  from 
men  as  near  the  age  of  accused  as  possible,  and  some- 
thing near  his  nature  and  nationality,  if  convenient. 

Now  comes  the  order  of  trial.  In  this  case,  .beware, 
and  say  nothing.  After  the  people  state  and  begin  to 
prove  their  ease,  draw  by  one  or  two  questions  a  slight 
discrepancy  or  difference  of  location,  but  do  not  dwell 


CRIMINAL    DEFENSES.  G7 

upon  it.  Do  it  in  kind  tones,  and  pass  gently  to  the 
witness  "who  saw  the  transaction.  Note  where  he 
stood.  How  well  he  could  see  and  hear.  Make  him 
admit  some  little  confusion  ;  some  excitement,  and 
some  distance  ;  then  a  lack  of*  a  cool,  careful  notice  of 
all  that  happened.  See  that  he  did  not  notice  particu- 
larly whether  deceased  was  angry,  touched  his  pocket ; 
threatened  or  attempted  violence  first.  If  he  did  not 
know  what  led  to  it,  so  much  the  better.  Very  likely 
he  did  not.  If  he  did  know  it,  learn  through  one  whom 
you  should  set  to  find  out,  the  worst  he  is  to  say,  and  be 
ready,  and  see  that  you  do  not  make  the  missing  link 
of  the  people's  case  by  over  cross-examination. 

In  the  case  I  have  in  mind,  a  third  party  witnessed 
the  death,  and  measured  the  ground,  and  was  an  ex- 
cellent support  of  defendant's  theory.  We  will  call 
his  name  Chapin.  "Mr.  Chapin,  you  are  a  farmer?" 
"  Yes,  for  thirty  years."  "And  saw  the  parties  to 
the  Christler  affray?  "  (don't  call  it  murder).  "  Yes, 
I  come  up  just  as  the  young  man  was  dying."  (All 
lean  forward  intently.  This  is  a  supreme  moment, 
and  you  know  what  is  coming,  but  need  not  appear  to). 
"What  was  said,  if  anything,  by  either  of  the  par- 
ties?" "  I  would  not  like  to  repeat  it.  It  was  very 
wicked."  "Repeat  it,"  says  the  court.  "I  was 
about  to  offer  him  the  consolations  of  religion,  when 
he  turned  from  me  with  scorn.  I  told  him  he  would 
soon  go  before  his  God  to  be  judged,  and  wished  to 
pray  for  him.  To  my  astonishment  he  turned,  and 
with  terrible  and  shocking  oaths  he  cursed  me  and  the 
defendant  together."  "  And  you  left  him  ?  "  "  Yes, 
sir."      "That  is  all." 


68  TRIAL    PRACTICE. 

An  excellent  way — just  as  witness  was  leaving  the 
stand — as  if  by  chance,  this  question  was  put:  -'Did 
you  observe  the  ground  and  the  location  where  Mr. 
Christler  speaks  of  seeing  the  shooting?"  "  Yes,  I 
own  the  land,  and  know  all  about  it."  "And  what 
have  you  to  say  of  how  well  he  could  see  from  that 
location?  "  "  Why,  it  is  impossible  :  unless  he  could 
stand  up  in  a  wagon,  or  look  through  the  hill,  fori 
tried  it  myself,  with  my  hired  man  standing  in  the 
same  position.  I  couldn't  believe  when  I  heard  the 
story  in  the  Justice  Court."  This,  with  the  hired 
man's  story,  left  the  jury  a  right  to  believe  that  de- 
ceased came  to  his  death  from  a  natural  quarrel,  cause 
unknown,  except  as  detailed  by  defendant,  which  was 
that  deceased  had  first  threatened,  and  placed  his 
hand  to  his  hip  pocket,  in  a  threatening  attitude. 
Counsel  for  defense,  with  wise  discretion,  rested,  and 
the  jury  acquitted  his  client,  on  a  reasonable  doubt  the- 
ory, well  placed  with  the  wicked  words,  hip  pocket, 
and  larger  size  of  deceased  over  defendant. 

TEX  TURNING  POIXTS. 

1.  When  a  counsel  gives  away  three  little  points 
of  no  value,  and  thereby  gains  the  court's  good  will, 
the  jury's  confidence,  and  his  client's  verdict. 

2.  When  a  counsel  forgets  he  is  (or  should  be)  a 
gentleman,  and  prefers  to  lose  a'friend  to  perpetrate  a 
joke,  and  lose  a  client's  case  by  his  silliness. 

3.  When  a  counsel  remembers  gray  hairs,  timid 
children,  or  women  unaccustomed  to  court  houses,  and 
treats  them  with  clear    kindness  in    place    of    abuse, 


TEX    TURNING    POINTS. 


69 


which  is  the  weapon  of  a  bully,  and  always  is  offen- 
sive to  decency. 

4.  When  a  counsel  excludes  two. ex-policemen,  one 
deputy  sheriff,  and  a  justice  from  a  jury  in  a  crim- 
inal case,  if  he  is  for  defendant,  and  retains  them  for 

plaintiff. 

5.  When  a  jury  both  laughs  and  cries  with  coun- 
sel, so  heartilv  that  there  is  no  mistake  of  their  united 
sympathies,  they  are  his,  unless  a  stronger  touch  of 
nature  removes  the  impression,  for  few  can  be  laughed 
at  and  recover  handsomely. 

6.  When  an  advocate  is  tripped  in  a  strange  court 
by  an  overbearing  opponent,  and  returns  the  com- 
pliment in  a  handsome  chastisement,  that  is  known 
to  be  just  and  deservedly  delivered. 

7.  When  a  story,  apt  and  conclusive,  destroys  the 
theory  or  reason  of  an  opponent  by  a  plain  point 
that  no  one  can  cover,  or  put  down  with  argument,  it 
is  effective,  for  a  picture  is  an  argument,  and  a  story 
is  an  unpainted  portrait. 

8.  When  the  people's  witnesses  make  the  juries 
doubt,  and  the  evidence  points  equally  to  guilt  or  inno- 
cence, with  a  just  judge  gently  leaning  towards  mercy. 

9.  When  the  looks,  acts,  friends,  surroundings  of 
a  prisoner  point  to  a  life  of  past  rectitude,  and  a  heart 
not  steeped  in  crime,  and  his  story  was  given  with  con- 
fidence, and  vividly  put  to  the  jury,  with  a  character 
for  integrity,  and  he  shown  to  be  in  honest  employ- 
ment. 

10.  When  counsel  spends  more  time  in  trying  spar- 
ring and  technicalities,  or  in  trying  lawyers  than 
in  reaching  the  core  of  the  controversy,  then  he  is  los- 


70  TRIAL    PRACTICE. 

ing  with  the  jury,  when  by  strict  attention  to  the  main 
issue,  enforced  by  logic,  power,  illustrations,  and  abso- 
lute clearness,  with  evidence  left  off  at  telling  sentences 
he  is  turn'msr  his  tact  to  winning  his  law  suit. 

TEX  CR0SS-EXAMIX1XG  RULES. 

Never  expect  to  prove  your  case  by  the  other  side's 
witnesses.  But  treat  what  you  get  with  coolness  till 
the  closing. 

Never  appear,  to  have  too  strong  a  case,  or  boast  of 
it  in  advance.  The  race  may  not  be  to  the  swift  but 
to  the  valiant. 

Never  get  angry,  and  say  rude  things  to  intimidate. 
A  good  steady  look,  long  and  untiring  is  instructive. 

Never  sit  down  and  seem  sleepy.  Throw  a  bad  wit- 
ness into  a  habit  of  a  great  many  yeses  to  your  ques- 
tions till  ready  to  say  it  "  snowed  "  in  July,  if  need 
be. 

Never  trust  a  case  on  one  question,  nor  drive  a  bad 
man  in  a  corner  so  hard  as  to  let  his  honor  depend  on 
truth  or  lies,  for  lie  will  lie  on  oath  who  lies  without  it. 

Never  use  a  drag  net  and  repeat  bad  evidence  re- 
peatedly in  a  jury's  hearing.  It  may  intensify  it.  The 
jury  will  commit  it  to  memory. 

Never  be  too  anxious  for  an  answer.  A  case  often 
turns  on  identification,  and  after  witness  is  drawn  into 
admission  of  a  possible  mistake  (first  by  a  possible 
uncertainty),  then  he  soon  admits  a  reasonable  doubt. 

Never  depend  on  trial  day  for  examination  ;  a  thor- 
ough inquiry  into  the  motive  of  witnesses  may  reveal 
weak  points.     Stand  while  examining,  and  commit  the 


FINE    WORK.  71 

subject  to  memory  so  as  to  be  interesting.  Interest 
even  fascinates  witnesses  besides  a  semi-applause  at  a 
happy  turn  is  heard  by  the  jury. 

Never  use  strange  language  or  harsh  tones.  Be  as 
persuasive  as  possible,  and  wait  for  the  anger  of  wit- 
ness first.  But  if  he  be  a  bully,  show  his  real  character 
fearlessly,  and  show  yourself  master. 

Never  ask  at  the  start  for  something  that  may  make 
the  case  stronger  for  the  other  side.  Such  is  very 
unwise. 

Never  hold  a  bad  witness  longer  than  you  can  o-et  a 
good  laugh  on  his  meanness,  or  lay  a  foundation  to 
impeach  his  assertions.  Be  brief.  Be  wary.  Be 
ready.  Be  at  your  best.  Be  full  of  the  subject. 
Master  your  witness  by  adroitness.  Be  sparing  of 
this  branch  always. 

FINE  WORK. 

In  machinery  and  building,  decorations  and  orna- 
ments, jewelry  and  painting,  music  and  acting,  writing 
and  teaching,  and  all  excellent  works  or  improve- 
ments, time,  skill,  labor  and  genius,  are  employed  to 
reach  the  highest  art  in  the  undertaking.  Children 
are  sent  abroad,  graduates  are  placed  under  careful 
training,  and  endless  sums  are  expended  to  perfect  the 
handiwork  or  increase  the  skill  to  the  highest  finish, 
and  yet  we  rind  people  selecting  as  counsel,  and  advo- 
cates, men  of  small  experience,  and  less  actual  train- 
ing in  means  of  practical  knowledge. 

If  the  study  of  Turner's  paintings,  and  Wagner's 
music,  is  of  benefit  to  students,  why  are  not  the  arts 


72  TRIAL    PRACTICE. 

of  distinguished  speakers  of  equal  benefit  to  lawyers? 
Truly,  paintings  are  not  all  copies.  They  may  have 
similar  shades,  trees  and  landscapes,  that  make  them 
resemble  each  other  as  mist  resembles  rain,  but  a 
study  of  colors  need  not  be  a  copy  of  design.  To  a 
lawyer,  words,  sentences,  points  and  skillful  turns  of 
evidence,  must  be  beneficial.  When  Seward  followed 
up  the  pettifoggers  till  he  beat  down  their  bluffing 
with  Supreme  Court  verdicts,  and  won  the  name  of 
"  no  small  potatoes  after  all,"  he  set  a  shining  exam- 
ple of  real  courage.  No  one  cheered  him  to  begin  ; 
all  cheered  his  closing  career.  "When  he  brought  in  a 
section  of  picket  fence  to  confront  a  lying  witness,  he 
showTed  he  was  a  genius  in  cross-examination,  and  had 
studied  his  subject,  and  knew  the  distance  between 
pickets,  and  observed  what  happened  around  him. 

When  Hendricks  carries  a  map  up  among  the  twelve 
jurymen,  it  is  the  art  of  explanation.  He  is  seeking 
the  honor  of  victory  more  than  the  honor  of  oratory. 

When  Daniel  Dickinson  and  John  Graham  crowded 
their  speeches  with  eloquent  Scripture  quotations,  and 
filled  them  with  examples  of  similar  trials,  and  how 
they  resulted,  they  knew  the  effect  of  homely  illustra- 
tions. Brady  knew  so  well  that  he  had  the  jury  with 
him  in  the  Sickles  case,  by  a  single  pathetic  turn  in  his 
argument  to  the  court,  that  he  willingly  waived  further 
summing  up.  Carpenter  invariably  quit  with  a  vic- 
tory, or  ended  on  a  salient  point  in  which  he  gained 
an  advantage.  Crittenden  culled  the  flowrers  of  ancient 
rhetoric,  and  Marshall  moved  a  jury  with  beautiful 
imagery,  Storrs  presents  a  most  beautiful  array  of 
rhetorical  pictures,  fluent  in  speech,  and  animated  in 


FINE    WORK.  ~.\ 

manner.  Dexter  is  clear,  ringing  and  forcible,  from 
long  use  of  expressive  phrases.  The  sentences  of 
Beach  are  rhythmical  and  sublime.  Porter  is  a  genius 
of  long  experience,  Curtis  both  a  born  and  cultivated 
orator;  Shaffer  an  encyclopedia'  of  fine  arts,  in  prac- 
tice, read  full  and  ripened  in  eloquence.  Tremain 
mastered  Cicero  and  Demosthenes,  as  Cicero  did  the 
ancient  authors  of  oratory.  Stanton  had  a  fund  of 
rare  ready  practice  for  tine  work.  Matthews  is  a 
fountain  of  knowledge  in  court  practice.  Ryan  knew 
the  power  of  language,  and  adopted  it.  And  so,  men 
of  all  States,  cities  and  countries,  all  who  loved  to 
excel,  have  made  it  a  study. 

Men  who  have  succeeded  as  advocates  had  at  their 
tongue's  end  in  memory,  and  in  reaching  distance,  the 
right  art  and  fine  work  to  use  at  the  right  time,  and 
make  it  tell  in  the  cases  thev  were  advocating. 


74  TRIAL    PRACTICE. 


CHAPTER  VIII. 


SUCCESS   AT  THE    BAR. 

'•  It  is  success  that  colors' all  in  life; 
Success  makes  fools  admired, makes  villians  honest; 
All  the  proud  virtues  of  this  vaunting  world 
Fawns  on  success  and. power,  how'er  acquired.''' 

— Thompson. 

Chauncey  Shaffer,  of  New  York,  thinks  that  success 
at  the  bar  is  not  alone  in  the  genius  or  birth-place  of 
the  advocate,  but  more  often  in  his  opportunity.  Of 
course,  he  insists  upon  industry  and  intense  applica- 
tion, but  gifts  are  born  in  a  man  as  speed  is  born  in  a 
race  horse,  neither  can  be  cultivated  without  a  native 
grerm  as  a  foundation.  Mr.  Shaffer  believes  that  our 
great  lawyers  are  mostly  self-made  ;  that  the  quality 
of  integrity  and  industry  often  comes  from  early  life, 
where  one  lays  the  foundation  in  self-denial,  and  in- 
tense application,  which  becomes  written  on  the  heart 
and  engraved  upon  the  bones,  and  is  enduring. 

He  believes  in  standing  alone  and  avoiding  counsel, 
as  much  as  possible,  to  acquire  a  toughness  and  inde- 
pendence of  character.  In  his  famous  Elevated  Rail- 
way cases,  when  he  contended  single  handed  with 
David  Dudley  Field  and  other  great  lights,  he  thinks 


SUCCESS    AT   THE    BAR.  75 

the  force  of  being  alone  gave  him  a  fairer  chance  to 
win  his  $30,000  verdict  for  a  single  accident.  He  also 
believes  that  country  lawyers,  Avho  rise  to  sonic  emi- 
nence and  £0  with  their  frugal  habits  to  large  cities, 
generally  succeed  from  industry  and  eloquence.  Of 
course,  men  like  Judge  Dillon,  late  of  St.  Louis,  who 
acquired  fame  as  an  author,  and  is,  in  fact,  an  excel- 
lent lawyer,  could  easily  take  rank  in  New  York  with 
governors  of  States  and  generals  of  armies,  or  leaders 
in  law  in  large  cities.  And  it  is  also  true  that  a  bril- 
liant lawyer  in  an  inland  city  is  brilliant  in  any  city  in 
the  same  sense  that  authors  and  advocates  are  not  all 
in  eities.  But  the  chances  for  fame  are  two  to  one  in 
cities  with  metropolitan  papers  to  publish  their  efforts. 

William  H.  Seward,  as  a  young  man  in  Auburn,  was 
slim  in  stature,  timid  in  manner,  and  early  took  the 
name  of  "  Small  potatoes  Seward."  This  name  was 
so  basely  humiliating  and  so  little  deserved,  that  young 
Seward  bent  his  energies,  day  and  night,  to  overcome 
it.  It  was  given  him  by  pettifoggers  who  in  early 
years  could  laugh  down  a  boy  lawyer  much  more 
easily  than  in  our  day. 

Seward  worked  on  and  on,  with  courage  and  indus- 
try, and  soon  won  all  his  cases  in  higher  courts,  and 
after  farmers  had  paid  a  few  large  bills  of  taxed  costs 
in  appeal  cases,  and  lost  their  law  suits  with  pettifog- 
gers, it  came  to  be  reported  something  like  tins : 
"  That  Seward  isn't  no  small  potatoes  after  all.*'  This 
pleased  the  young  man,  and  he  continued,  always 
avoiding  help  if  possible,  so  as  to  stand  alone  in  his 
victories.  He  grew  eminent,  rirst,  in  court  as  a  rea- 
soner,  second,  in  public,  as  a  speaker,  and  at  last  be- 


70  TRIAL    PRACTICE. 

came  a  statesman  of  wonderfully  acute  intellect. 
Doubtless  he  was  born  with  large  gifts,  and  the  very 
hardship  which  inferiors  forced  upon  him,  helped  to 
develope  his  character  and  intensify  his  greatness.  He 
believed  that  John  Van  Buren,  of  New  York,  "  Prince 
John,"  was  the  greatest  of  all  criminal  advocates.  In 
the  famous  conspiracy  case  of  1859,  where  forty  men 
were  tried  at  Detroit  for  a  conspiracy  to  burn  the 
Michigan  Central  Depot,  Gov.  Seward  defended  and 
made  the  best  and  most  powerful  argument  on  his 
side  of  the  case.  It  was  intended  that  Van  Buren 
should  be  employed,  but  he  engaged  Mr.  Seward. 
Many  marks  of  his  genius  appear  in  his  conduct  of  the 
trial,  and  his  eloquence  was  of  a  convincing  and  per- 
suasive character.  One  witness  swore  to  having 
crawled  through  a  fence  and  listened  to  the  story  of 
some  farmers  —  enemies  of  the  road.  Seward  was 
precise  about  the^9?«ce  in  the  fence,  liow  many  pickets 
were  off,  etc.,  and  showed  but  one  which  would  not 
allow  of  more  room  than  a  cat's  body  would  require  to 
pass  through.  He  did  not  kill  his  case  by  cross-exam- 
ination, but  brought  a  section  of  the  fence  before  the 
jury,  and  they  saw  how  wickedly  the  witness  had 
sworn  to  a  falsehood. 

It  is  said  that  William  A.  Beach  has  acquired  his 
fame  largely  as  an  advocate  before  juries,  and  made 
his  practice  by  so  completely  overpowering  his  ene- 
mies that  they  always  hired  him  after  one  solid  defeat, 
in  which  he  was  the  opposing  counsel. 

Chief  Justice  AVaite  made  his  fame  as  a  lawyer  by 
an  iron  sided  tight,  and  an  almost  always  signal  vic- 
tory.    General   Butler  has  come  to  fame  in  much  the 


SUCCESS    AT    THE    BAR.  77 

same  way.  Stanley  Matthews  has  succeeded  by  large 
knowledge  and  immense  determination,  besides  he  is 
very  eloquent.  Many  succeed  by  law  arguments 
alone,  like  Judge  Comstock,  of  Syracuse,  or  graphic 
illustrations  and  innate  genius,  like  Gov.  Dillingham, 
of  Vermont,  or  the  brilliant  Matt  Carpenter.  But 
John  Van  Annan  declares  that  location  has  much  to  do 
with  success,  especially  the  kind  of  practice  followed. 
He  believes  that  many  are  poor  when  they  begin  and 
drift  into  a  bad  line  of  criminal  defenses.  Some 
adopt  a  wrong  specialty.  He  is  a  railroad  attorney, 
having  been  one  of  the  best  criminal  advocates  ever 
settled  in  Chicago.  Mr.  Van  Annan  does  not  think 
railroad  law  has  a  tendency  to  advance  a  man  legally 
or  politically,  but  hampers  him  before  juries,  makes 
him  appear  to  lose  cases  often,  and  never  be  very  pop- 
ular. He  is  a  keen  judge  of  human  nature,  and  wins 
hard  cases  by  tact  and  courage.  In  a  recent  coal  case 
he  spent  three  days  underground,  in  coal  and  dust  and 
disagreeable  work,  to  estimate  and  explain  fully  to  the 
jury.  In  the  great  Michigan  Central  Conspiracy  Case 
he  prepared  the  facts  with  masterly  ability. 

Judge  Evan's  rise  at  the  bar  was  from  his  mastery 
of  words  and  their  meaning,  rules  and  their  applica- 
tion. He  neglected  no  case,  but  made  it  as  clear  and 
strong  as  if  his  reputation  all  depended  on  a  single 
effort. 

Senator  McDonald,  of  Indianapolis,  believes  young 
men  do  best  and  succeed  best  in  a  city.  Gov.  Hen- 
dricks thinks  a  start  first  in  the  country  is  better,  that 
it  is  like  setting  a  light  in  a  dark  place,  where  it  shows 
for  something,    while  if  placed   by  bright  headlights. 


78  TRIAL   PRACTICE. 

that  the  beginner  finds  in  a  city,  the  little  light  is  lost 
sight  of  and  obscured. 

I  could  give  numberless  steps  by  which  men  have 
risen  to  fame,  but  the  plan  of  personal  self-reliance  of 
the  gifted  Senator  Seward  is  as  worthy  for  a  model  as 
one  need  remember.  Should  the  laugh  turn  first  on 
the  inexperienced,  make  it  a  rule  to  win  times  enough 
to  compel  attention  and  reverence.  There  is  no  one 
element  like  a  series  of  consistent  victories  to  advance 
any  man  in  life  in  any  profession.  Skill  and  results 
tell  the  story. 


TAKING    WRONG    POSITIONS  7'.' 


CHAPTER  IX. 


TAKING  WKONG  POSITIONS. 


The  theory  of  a  ease  often  wins  or  defeats  it.  If 
counsel  proceeds  without  a  theory  he  has  a  strange 
path  to  follow,  while  with  ripe  judgment  he  could  be 
an  experienced  traveler,  knowing  all  the  fine  points  of 
observation  readily,  and  without  surprise.  It  is  better 
first  to  adopt  a  safe  position,  and  not  assume  all,  or 
risk  all  at  once. 

A  full  clear  statement,  with  a  Blucher's  trusty 
10,000  in  reserve,  just  ready  to  bring  up  at  the  right 
moment,  makes  one  feel  like  saying:  "lb-  that 
handlcth  a  matter  wisely  shall  find  good." 

But  if  one  has  taken  a  position  he  must  not  swap 
horses  in  crossing  a  stream,  and  upset  his  theory  to 
the  ruin  of  all  prospects.  Many  a  murder  case  denied 
outright  could  have  been  well  defended  by  the  "  hip- 
pocket"  argument:  "  He  was  about  to  fire  on  me," 
or,  "I  had  reason  to  fear  bodily  harm,"  the  attacked 
being  the  judge  in  all  such  cases— when  a  better  reason 
must  be  shown  than  a  denial  of  any  part  of  the  tragedy. 
In  the  Romero  ease,  lately  vividly  reported  in  Las 
Vegas  Optic,  by  E.  W.  Freeman,  an  eye-witness  to 
the  circumstance,  the  prisoner  was  only  nineteen,  of 


80  TRIAL    PRACTICE, 

o-ood  habits  and  character,  with  a  mother,  sister,  and 
plenty  of  friends,  and  even  friendly  with  the  mur- 
dered man.  It  was  shown  that  he  had  on  his  person, 
when  captured,  some  supposed  money  and  clothing  of 
the  victim,  and  had  fled  the  country  at  the  very  date 
of  the  murder  on  a  race-horse,  "  Silver-tail,"  belong- 
ing to  the  deceased,  and  acted  somewhat  guilty. 

Counsel  were  appointed,  and  he  was  defended  on 
the  theory  of  not  quilty,  and  no  knowledge.  He  was 
convicted  by  a  powerful  array  of  circumstances, 
related  to  the  jury  with  graphic  force  and  telling 
effect  by  T.  R.  Catron  and  Col.  Breedan,  of  Santa 
Fe  ;  and  after  conviction  he  confessed  facts,  which,  if 
known  in  season,  wTould  have  saved  him. 

It  seemed  that  he  had  kept  company  with  a  Mexican 
girl  of  rare  beauty,  and  that  a  half-breed  Indian  was 
smitten  by  the  same  charmer.  On  the  day  of  the  kill- 
ing, or  the  night  before,  so  the  confession  goes,  the 
Indian  called,  and  was  let  in  late  to  the  murdered 
man's  ranche,  and  remained  sleeping  by  the  fire  till 
day-break. 

Early  in  the  morning  Romero  went  to  milk  the 
o-oats,  and  the  Indian  and  victim  commenced  shooting 
at  a  mark.  When  Romero  finished,  and  came  to  the 
cabin,  or  adobe,  with  his  milk  pails,  and  saw  his  friend 
dead  and  bleeding,  he  confronted  the  Indian,  who  at 
once  threatened  great  vengeance,  and  said  that  he 
would  report  that  Romero  had  killed  his  employer! 
This  so  shocked  and  frightened  Romero  that  he  fled 
the  country  on  horseback. 

His  fleeing  denoted  guilt,  while  the  Indian  gave  evi- 
dence of  an  alibi,  and  showed  he  was  ten  miles  distant 


TRIFLES    THAT    TELL.  81 

when  the  tragedy  happened  (by  quite  likely  to  be  per- 
jured testimony).  The  Indian  was  cleared,  and  mar- 
ried the  Mexican.  Romero  was  hung,  protesting  his 
innocence  to  the  last.  A  better  theory  would  have 
been  an  early  confession  to  a  knowledge  after  the  fact, 
and  a  denial  of  the  killing.  Here  is  a  case  of  one  pre- 
sumed to  have  become  suddenly  vile,  when  one  of  the 
Grandest  old  Roman  maxims  says  :  "No  man  becomes 
suddenly  evil." 

Nothing  in  law  quite  equals  experience.  He  is  a 
wise  man  that  has  known  many  men  and  seen  many 
cities. 

TRIFLES  THAT  TELL. 

Costs  that  follow  a  verdict  on  the  merits  are  freely 
paid  to  the  victor.  But  costs  begged  at  a  court  on 
every  little  motion  or  petty  proceeding  are  worse  than 
street  begging ;  they  may  till  a  pocket  book  with 
pennies  that  would  be  replaced  with  dollars  gained 
from  a  good  name  and  generous  dealing. 

How  little  and  low  one  must  feel  who  stoops  to 
profit  by  the  error  of  a  brother  or  "snap"  judgment, 
attained  with  absence  of  witnesses.  I  have  never- 
known  a  mean  practitioner  to  secure  many  clients,  or 
win  many  verdicts.  It  belittles  one  so  much  that  the 
air  is  tilled  with  hatred  to  him,  and  what  he  may  say, 
even  if  witty,  will  be  lost  on  the  bur,  as  it  should 
be. 

Suppose  counsel  could  gain  two  demurrers,  and 
three  motions  a  year,  or  thirty  dollars  in  small  prac- 
tice, that  is  but  a  small  part  of  ;i  year's  earnings,  and 

(6) 


82  TRIAL    PRACTICE. 

make  him  three  to  six  enemies  and  strong  haters, 
either  one  of  which  would  do  him  double  the  injury 
he  had  caused  the  other,  by  a  bad  name  and  a  charac- 
ter for  meanness  —  meanness  is  the  only  word  that  ex- 
presses it — and  should  be  syllabled  out  from  Maine  to 
Kansas  with  emphasis  in  the  ears  of  all  stingy  lawyers. 

There  is  no  profession  that  will  stand  less  lack  of 
integrity  unrebuked,  or  petty  advantage  with  impu- 
nity, than  the  legal  fraternity.  We  all  realize  how 
dependent  we  are  upon  honor  and  fairness ;  how 
much  may  be  lost  by  a  single  promise  unkept ;  how 
much  will  be  gained  by  the  good  will  of  others,  and 
how  pleasant  it  is  to  dwell  in  unity. 

Leaders  of  the  bar  have  never  been  captious  exacting 
for  petty  gains  in  practice,  or  beggars  of  small  fees  from 
their  fellow  lawyers.  Rather  has  it  been  the  rule  of 
the  best  advocates  to  cherish  a  fraternal  feeling  on  all 
matters  that  were  not  prejudicial  to  their  client's  cases, 
to  make  money  from  suitors,  and  not  lawyers  ;  to  live 
upon  legitimate  practice,  and  not  as  one  clutching 
with  greedy  fingers  the  miserly  pittance  of  some  petty 
advantge  that  never  reaches  the  merits  of  controversy. 
Littleness  is  evidence  of  small  and  narrow  minds.  It 
leads  to  hatred  during  life,  and  as  one,  once  forcibly 
put  it,  there  will  always  be  men  anxious  to  put  gravel 
stones  instead  of  flowers  in  the  grave  of  men  who  have 
injured  so  many  people  in  their  lifetime. 

By  contrast,  what  a  host  of  friends  the  good  draw 
around  them.  "What  characters  for  honor!  "What 
talents  conceded !  "What  counsel  fees  paid !  What 
good  words  are  spoken,  and  business  chances  are 
turned  over  to  men  of  large  hearts  and  noble  natures  ! 


SPECIAL    VERDICTS.  83 


SPECIAL  VERDICTS. 


Puzzling  questions,  is  the  term  well  applied  to 
special  verdicts,  and  in  some  cases  the}'  prove  to  be 
too  much  for  the  jury  to  answer.  The  thing  to  be 
avoided  is  too  many  of  them,  and  such  as  tic  a 
double  bow  knot  and  draw  the  ends  through. 

More  than  one  wise  counsel  has  seen  the  verdict 
half  made  up  in  the  eyes  of  a  jury,  and  tried  to  hedge 
by  a  lot  of  questions  to  muddle  the  jury.  It  is  fortu- 
nate for  suitors  that  good  counsel  are  sparing  of  this 
double-edged  sabre,  if,  as  in  a  recent  railroad  case, 
the  wrong  answer  follows,  the  fault  is  with  the  advo- 
cate. It  seems  that  A.  &  Co.,  brought  suit  for  a  car 
load  of  beans,  shipped  to  Toledo  when  the  Union 
Depot  was  flooded  with  an  ice  gorge,  and  water  rap- 
idly rising.  The  beans  were  badly  damaged,  and 
three  hundred  dollars  worth  destroyed.  Under  a 
charge  of  the  court  the  company  were  liable  for  the 
lost  beans,  and  if  they  found  from  the  evidence  that 
the  company  were  guilty  of  carelessness  in  sending  the 
cars  into  the  depot  while  the  floods  were  rising,  they 
were  liable  to  the  full  value  of  the  load,  regardless  of 
salvage.  Counsel  seeing  the  probability  of  a  disagree- 
ment, or  small  verdict,  sent  a  special  question  to  the 
jury  as  to  the  carelessness  of  the  company.  The  jury 
agreed  readily  on  a  verdict  of  three  hundred  dollars, 
and  as  readily  that  the  company  was  guilty  of  careless- 
ness in  backing  in  the  car  at  their  own  risk  in  the  face 
of  fair  warning.  The  special  question  controlled  the 
general  verdict,  and  gave  plaintiff  a  verdict  for  over  ihn  e 


84  TRIAL    PRACTICE. 

times  the  original  finding,  and  against  the  counsel  ask- 
ing the  extra  verdict. 

In  a  recent  libel  case  the  plaintiff  was  charged  with 
certain  acts  that  indicated  a  guilty  knowledge  of  a 
serious  offense,  the  ground  of  the  action.  Plaintiff's 
counsel  was  so  determined  to  face  the  jury  on  the 
issue,  that  he  put  a  special  question  to  them  as  to 
whether  they  found  from  the  evidence  that  plaintiff 
was  really  guilty  of,  or  knowing  to  the  offense  charged 
in  the  libel,  and  the  jury  answered,  "Yes,"  to  the 
great  disgust  of  his  counsel. 

In  another  case  a  large  number  of  questions  were 
ruled  as  ambiguous,  and  not  given  to  the  jury  for  an- 
swer, and  the  appellate  court  decided  it  a  wise  dis- 
cretion of  the  trial  judge  to  exclude  them  as  contrary 
to  the  statute  allowing  special  verdicts. 

These  hints  are  given  to  show  that  counsel  can  go 
too  far  in  over-trying  their  cases,  as  well  as  to  fall  be- 
low their  whole  duty  by  occasional  acts  of  omission. 

GENIUS    AND    INTEGRITY. 

The  quality  that  wins  more  client-  than  eloquence  is 
integrity.  It  counts  in  court,  before  court  and 
throughout  the  range  of  counsel's  clientage.  Integ- 
rity without  genius  is  better  than  genins  without  integ- 
rity, for  many  a  genins  is  lacking  in  method  and  prac- 
tical usefulness. 

Who  does  not  know  of  leader-  in  their  college 
classes  that  made  excellent  bar-keeper-  or  tally  clerks 
and  nothing  more  ;  who  doe-  not  know  of  stupid  boys 
at   school    all  the  forenoon  of  their  live-,  and  yet  be- 


GENIUS    AND    INTEGRITY.  85 

came  giants  in  manhood?  The  middling  talents  of  men 
are  far  more  prosperous  with  energy  and  integrity, 
than  the  brilliant  achievements  that  last  but  an  hour 
and  are  forgotten. 

Young  men  of  energy  and  lacking  in  genius,  have 
much  to  hope  for  in  a  profession,  largely  learned  in 
books  and  business.  Young  men  of  genius  have  much 
to  fear  from  indolent  reliance  on  gifts  and  natural  en- 
dowments. Men  who  point  to  Henry  as  an  example 
of  a  born  lawyer  without  the  slow  growth  of  experi- 
ence, have  a  model  that  a  vivid  historian  —  Wirt  — 
made  a  God  of  from  a  couple  of  short  speeches,  whose 
name  is  a  notable  exception,  and  proves  nothing  that 
will  do  to  pattern  after  in  actual  practice. 

Lawyers  who  aim  at  perfection  will  never  take 
Henry  as  a  standard.  Clients,  with  the  general  pub- 
lic, distrust  the  legal  profession.  Before  a  case  of 
importance  is  given  to  an  attorney,  careful  inquiry  will 
be  made  of  his  standing  and  integrity.  The  worst  of 
recommends  is,  "  He  is  smart,  but  shaky,  etc.,  you 
must  look  out  for  him,  look  out  for  him."  Look  out 
for  a  confidential  adviser  !  Why  that  is  just  the  kind 
of  counsel  to  be  avoided,  and  a  reputation  of  this 
character  is  one  that  may  bring  occasional  good  fees, 
but  never  bring  a  permanent  practice  of  high  value. 

Men  who  become  counsel  of  railways  or  corpora- 
tions who  organize  banks  and  build  up  characters  that 
carry  weight  and  influence  with  their  undertakings, 
are  men  of  known  integrity,  whose  word  and  promise 
and  slightest  obligation  will  never  be  questioned. 
Such  men  in  a  court  room  carry  conscience  and  skill 
like  unerring  instruments  tested  and  proved  to  be  re- 


86  TRIAL   PRACTICE. 

liable.  Confidence  is  so  rare,  of  such  slow  growth, 
that  a  long  life  of  rectitude  is  a  fortune  to  its  posses- 
sor. As  a  lawyer,  it  is  his  monument  of  past  action, 
his  friends  point  to  it,  and  his  enemies  respect  it.  He 
is  a  strong  man  in  any  community  who  has  stood  with 
character  unchallenged  for  a  quarter  of  a  century,  and 
that  is  about  the  age  of  a  ripe  counselor's  zenith  in 
practice. 


LAWYERS    AS    LEADERS.  87 


CHAPTER   X. 


LAWYERS  AS  LEADERS. 


The  leaders  in  a  general  assemblage  of  men,  sud- 
denly summoned  together  to  decide  almost  any  ques- 
tion of  public  interest,  will  be  composed  largely  of 
lawyers.  The  Parliament  of  Europe,  the  Congress 
and  Senate  of  the  United  States,  and  each  of  the  sev- 
eral State  governments  of  the  nation,  draw  their  rules 
and  wisdom  in  general  from  legal  advisors.  This  is 
true  of  banks,  corporations  and  companies  of  large 
monied  interests. 

Where  careless  contracts  might  easily  involve  their 
houses  in  ruin,  or  sensible  advise  could  steer  their 
course  so  safely  that  accidents  need  never  impair  the 
capital,  or  losses  invade  their  private  fortunes,  consid- 
ering the  large  sums  spent  in  litigation,  the  time, 
anxiety  and  prospects  of  defeat  for  want  of  safe  coun- 
sel, how  strange  it  seems  that  more  reliance  is  not 
placed  on  men  whose  business  calls  their  attention  to 
legislative  enactments  and  the  precedents  of  court 
decisions. 

With  the  vast  responsibility  before  them,  with  the 
daily  prospect  of  being  questioned  on  State,  municipal 
and  business    affairs,  with  the  thought  that  on   the 


88  TRIAL   PRACTICE. 

answer  given  may  depend  the  success  of  him  who 
counsels  wisely,  is  it  unreasonable  to  ask  trial  lawyers 
to  be  ready  and  well  read  on  the  affairs  of  the  world? 
Would  you  ask  a  description  of  frontier  life  or  far 
away  customs,  speak  with  one  who  has  tasted  the 
hardships  of  the  former,  and  witnessed  workings  of 
the  latter. 

Lawyers  are  often  chosen  for  age  and  presumed 
wisdom  whose  learning  is  inapt  and  meaningless  as  the 
limited  observation  of  their  plodding  lives  would 
mould  and  make  it.  Doctors,  on  the  other  hand,  are 
more  wisely  selected  from  some  known  specialty 
wherein  they  excel  and  cure  their  patients.  Lawyers 
ought  to  be  well  read  in  matters  outside  of  their  pro- 
fession. Read  in  history,  romance,  Scripture  and 
human  nature.  History  will  be  dense  with  examples 
of  righted  wrongs  through  courts  and  laws  and  regu- 
lations.  The  pages  of  history  are  full  of  ripe  experi- 
ences of  heroic  lives  and  eloquent  appeals  for  liberty 
written  all  over  in  italics  of  long  suffering  men  finally 
triumphant. 

Romances  are  drawn  from  mysteries  in  courts,  over 
wills  or  marriages,  about  characters  that  live  and  have 
their  being  very  often  in  the  commonest  affairs  of 
business.  The  moral  of  the  author,  if  he  be  one  of 
worthy  fame,  will  add  interest  to  tradition,  and  weave 
in  the  rarest  touches  of  pathetic  incident  and  ingenious 
releases.  The  lesson  of  "  put  yourself  in  his  place," 
intensified  by  Reade,  the  character  pictures  of  Dickens, 
and  historical  sketches  of  Irving  and  Cooper,  are  all  full 
of  wisdom  and  beauty  ;  to  neglect  them  is  to  omit  such 
a  record  of  heart  histories  that  no  ripe  scholar  can 


LAWYERS    AS    LEADERS.  89 

afford  to  ignore,  even  if  saved  for  a  fund  of  illustra- 
tion. It  may  be  no  wiser  to  speak  of  a  matter  as  true 
in  history,  than  of  something  that  happened  yester- 
day, but  the  sanction  of  age  adds  authority  to  enforce 
attention. 

The  study  of  the  Scriptures  has  ever  been  a  means 
of  strength  in  criminal  advocacy.  Webster,  liyan, 
Carpenter,  Crittenden,  Voorhees,  Graham  and  Van 
Buren  all  reasoned  through  Scripture  characters,  and 
so  full  is  the  confidence  of  a  jury  in  the  truthfulness 
of  Bible  sayings,  that  they  lodge  in  the  mind  and  re- 
fuse to  be  removed  by  argument,  while  hundreds  be- 
lieve that  the  Proverbs  of  Solomon  are  the  sanctifica- 
tions  of  common  sense. 

But  what  lawyers  most  need  is  directness  of  pur- 
pose. Genius  is  never  so  much  lacking  as  application. 
The  most  brilliant  of  the  bar  often  take  to  drink  and 
grow  lower  and  lower  year  by  year,  till  they  end  in  the 
mad-house,  the  alms-house  or  the  gutter,  and  lawyers 
more  than  others  need  to  control  their  appetites.  Ex- 
cessive drink  is  the  temptation  before  a  speech  to 
make  it  fervid,  and  it  generally  makes  it  flat  or  silly  ; 
and  the  temptation  after  the  speech  to  make  up  for 
the  waste  or  over-exertion,  when  rest  is  the  real  thing 
lacking.  I  often  think  that  race  horses  are  far  better 
cared  for  after  a  contest,  than  lawyers  after  an  ex- 
haustive argument.  But  judgment  dictates  that  quiet 
and  rest  is  better  than  any  form  of  stimulants. 

The  ambition  of  all  lawyers  is  to  speak  well,  and  to 
such,  the  words  of  Fowler  should  be  engraved  upon 
their  memory,  "The  best  teachers  of  humanity  are 
the  lives  of  great  men,"  to  which  may  be  well  added, 


90  TRIAL    PRACTICE. 

the  best  teachers  of  good  speaking,  are  the  lives  and 
sayings  of  good  speakers  interwoven  with  intense 
practice. 

Henry  Clay  attributed  his  success  in  speaking  to 
his  early  practice  of  committing  speeches,  and  de- 
bating. Webster  was  a  great  student  of  oratory, 
and  O'Connell  believed  that  a  good  speech  is  a  good 
thing,  but  the  verdict  is  the  thing.  Gladstone  is  the 
only  man  in  Parliament  who  speaks  always  in  italics, 
and  he  is  full  of  maxims. 

While  the  best  of  teachers  may  fail  with  a  dull  stu- 
dent, one  born  with  eloquent  tendencies,  with  heaven's 
great  gift  of  genius,  and  a  heart  full  of  the  subject, 
will  need  no  rhetoric  in  words,  but  earnestness  ;  and 
probably  no  quality  can  better  aid  a  lawyer  in  his  road 
to  victory  than  is  expressed  in  the  simplest  sentences. 
The  statement  of  an  event  told  in  the  tone  and  words 
as  it  happened,  in  a  well  modulated  delivery,  will  best 
describe  even  the  most  terrible  tragedy.  The  events 
in  the  Bible  are  all  given  in  this  manner. 

No  amount  of  economy  on  a  meager  income  will 
ever  bring  riches.  It  is  the  proportion  of  money  spent 
to  money  earned  that  regulates  a  fortune,  so  that  to 
be  rich  in  information,  to  be  wise  in  knowledge  of 
books  one  must  be  industrious,  be  he  ever  so  careful, 
and  still  if  unwise,  how  can  he  impart  wise  counsel? 
The  field  is  a  large  one,  the  work  exacting.  A  trial  on 
patience,  integrity  and  vital'  energy,  bringing  early 
silver  of  locks  and  furrows  of  care  in  its  busy  energy, 
where  the  wheels  of  life  run  rapidly, and  some  day  the 
engine  stops  from  lack  of  propelling  power.  But  of  all 
men  lawyers  live  long,  and  see  much  of  life's  mixtures. 


LAWYERS   AS   LEADERS.  91 

As  success  in  racing  requires  training,  so  progress 
at  the  bar  is  marked  by  aptness  in  references  selected 
in  clearness  of  principles,  and  reasons  given,  and  full- 
ness of  the  subject  at  hand,  so  that  industry  is 
beyond  all  natural  requirements  in  the  conduct  of 
difficult  cases.  "I  never  realized  what  labor  was,'* 
said  Shaffer,  "  until  they  attempted  to  baffle  me 
in  the  poisoning  case."  "  "When  I  had  been 
three  da}'s  under  ground,  and  measured  every  vein,, 
and  studied  it  like  a  miner,  I  knew  I  was  right 
in  my  position,"  said  Van  Arman,  of  his  Ohio  coal 
case. 

And  what  other  rule  can  be  given  that  will  increase 
one's  practice  and  income?  This  is  it,  and  the  last 
one  :  Kindness.  The  success  of  a  man  in  business  de- 
pends upon  the  number  that  he  can  make  himself  agree- 
able to.  His  customers  come  out  of  their  way  to  deal 
with  him.  His  integrity  being  presumed,  and  honesty 
unquestioned,  and  industry  conceded,  even  then  he 
may  be  a  bear  in  appearance  or  actions.  If  he  is,  he 
is  sure  to  be  avoided. 

Much  in  law  comes  to  the  courteous  and  deserving. 
No  man  knows  when  he  passes  a  little  shop  with  a  key 
hung  out  as  a  sign,  that  he  may  ever  need  to  call  there,, 
but  the  first  broken  lock  reminds  him  of  its  location. 
No  one  knows  that  all  around  him  may  be  men  and 
women  of  peaceful  habits,  utterly  unknown  to  courts 
and  lawsuits,  whose  friends  may  be  deeply  involved  in 
trouble,  and  the  sunny  smile  or  kindly  tone  accom- 
panied by  other  essentials,  may  have  left  an  impression 
deep  and  lasting  on  one  who  shall  send  the  lawyer  his 
best  client,  all  through  some  act  of  kindness. 


i)2  TRIAL    PRACTICE. 

If  we  knew  much  depended  on  good  will  in  law  busi- 
ness, we  would  all  practice  courtesy.  Often  in  his 
earliest  cases  will  counsel  be  tempted  into  severe  lan- 
guage. He  may  be  overfull  of  prejudice  from  his  own 
■client's  story.  Most  likely  he  has  had  the  enemy  pic- 
tured as  a  brute,  and  the  opposing  counsel  seems  a 
wretch  to  contend  with  such  rights  as  his  client  seems  to 
possesss,  but  time  will  change  this  materially.  It  will 
be  better  by  and  by  to  avoid  personal  offense,  even  to 
defendant.  The  bone  of  contention  has  doubtless  been 
magnified.  The  opponent  has  many  equities  that  can 
be  fairly  conceded,  and  far  wiser  is  he  who  oils  the 
ruffled  feathers  by  kind  words,  and  makes  an  early 
settlement  possible. 

With  a  wise  enthusiasm  and  honest  purpose,  and  a 
thorough  skill  and  ripe  knowledge  of  facts  and  princi- 
ples, kindness  will  win  all  hearts  and  many  verdicts. 
And  in  a  calling  so  high,  great  and  noble  ;  so  honored 
by  the  lives  of  statesmen  and  orators  of  the  past ; 
honored  by  being  the  body  of  followers  whose  laws 
govern  humanity ;  honored  by  having  framed  great 
constitutions,  systems  of  government,  and  national 
settlements  that  has  saved  the  lives  of  whole  nations, 
and  systems  of  finance,  trade  protection  and  inter- 
national commerce  ;  with  all  of  them  to  remind  us,  and 
inspire  us,  how  small,  and  low,  and  mean,  seems  a 
little  quarrel,  and  how  great  and  grand  are  wisdom, 
honesty  and  nobility  !  To  acquire  which,  we  must  be 
diligent  and  genial  with  purity  of  purpose  and  charity 
in  practice,  so  that  when  death,  the  great  reconciler, 
is  come — to  divide  us — it  is  never  our  teiidemiess,  but 
our  severity  that  we  repent  of.     Let  us  talk,  act,  and 


WKALTHY    LAWYERS.  03 

live,  and  do  our  duty,  but  forgive  our  enemies  in 
whispers,  where  the  "  soft  answer  turneth  away  wrath, 
and  grievious  words  stir  up  anger." 

WEALTHY    LAWYERS. 

The  practice  of  law  is  not  always  remunerative. 
Many  an  advocate  turns  before  he  reaches  succe.-^  to 
other  and  more  profitable  employment.  The  cost  of 
books,  offices  and  travel,  the  delay  of  trials  and  worry 
in  weary  waiting  comes  to  most  men  as  a  discourage- 
ment. 

Men  wait  for  a  lawyer's  success,  as  they  do  for  an 
actor's  celebrity.  They  dislike  to  advance  much  on 
the  great  unknown.  This  is  a  terrible  blunder  of  men 
who  need  legal  talent.  If  one  is  apt,  keen  and  alert 
in  his  profession,  and  has  but  little  practice,  he  is  the 
very  one  who  will  spend  days  over  a  question  that 
older  attorneys  would  be  unable  to  devote  a  good 
hour's  study  to  investigate.  The  cheapest  talent  is 
the  medium  priced  and  rather  younger  classed  lawyers  ; 
men  who  have  reputations  to  win,  and  need  to  be  dil- 
ligent. 

As  new  houses  put  out  many  goods  at  small  profits, 
and  old  ones  rest  on  their  reputation,  so  lawyers  are 
full  of  rare  service  at  low  pay  when  they  start  in 
practice. 

I  have  seldom  known  very  rich  lawyers  to  be  very 
anxious  to  try  knotty  cases.  They  prefer  ease  in 
practice.  A  man  worth  many  millions  that  has  tried 
all  classes  says:  "Give  me  a  poor  lawyer,  not  too 
poor  to  be  needy,  but  give  me  one  who  wants  reputa- 


94  TRIAL    PRACTICE. 

tion  and  will  earn  it."  Give  me  young  talent  like 
new  buggies,  fresh  horses  and  new  houses  ;  the  fore- 
noon  chance  is  always  the  best.  When  one  is  rich  and 
able  to  rest,  why  should  he  kill  himself  with  over 
work  and  hard  cases?  The  young  are  the  burden 
bearers  of  business  generally,  and  no  less  in  law  than 
in  merchandise.  It  is  reserved  for  the  poor  men  to  do 
the  line  work,  study  and  invent  machinery,  improve 
on  the  old  methods  and  take  the  long  steps  forward, 
and  no  one  need  fear  that  poverty  will  forever  keep 
him  under  in  practice. 

It  is  a  mistake  to  regret  a  humble  birth,  or  envy  the 
rich  practitioner.  It  takes  no  genius  or  tact  to  be 
born  rich,  but,  as  Ingersoll  well  says,  "the  honor  of 
the  thing  is  in  improving  on  the  common  stock  — 
doing,  and  being,  a  little  better  than  our  ancestors.'" 
It  is  not  what  one's  position  may  have  been,  or  what 
his  parents  may  have  been,  or  how  he  attained  his 
rank  at  the  bar,  but  what  he  is>  and  how  well  he  can 
maintain  his  position,  that  tells  in  practice.  The 
genius  that  counts  his  fingers  till  he  learns  the  rules 
more  clearly,  is  none  the  less  a  genius.  The  boy 
lawyer  with  brains  and  grit  who  struggles  with  his 
superiors  and  succeeds,  is  more  deserving  than  the 
senior  of  name,  character  and  standing.  Time  evens 
such  things  nicely  in  the  long  run,  and  rich,  gray 
haired  men  need  never  be  envied  by  the  young  and 
ambitious,  for  few  lawyers  are  wealthy  under  fifty  who 
.make  their  money  in  practice. 


BELIEF    IN    YOUR    CASE.  95 


CHAPTER  XL 


BELIEF   IN  YOUR  CASE. 


The  jury  will  soon  know  if  you  have  a  doubtful 
case.  To  be  sure  about  it,  let  them  know  early  that 
you,  at  least,  are  confident  in  your  positions.  This 
may  be  expressed  in  calmness,  in  not  growing  petulant 
over  little  defects,  in  kind  and  courteous  behavior, 
in  a  manner  of  reserve  force  that  denotes  courage,  and 
an  unshaken  belief  in  evidence  as  it  passes  in  the  hear- 
ing of  the  jury. 

Any  nervous  or  petulant  anxiety  will  leak  out  in  the 
sight  of  the  jury,  who  watch  counsel  as  they  would  a 
couple  of  athletes  in  an  arena  —  especially  if  the  case 
has  any  interest  in  it,  which  all  good  cases  are  sure  to 
excite,  more  or  less,  during  the  early  stages  of  the 
trial. 

The  true  course  is  to  assume  and  maintain  serene 
confidence  throughout,  by  an  impressive  statement  of 
facts  and  law,  if  need  be,  and  a  strict  adherence  to 
your  positions.  Should  the  court  disagree  with  you, 
insist  upon  an  exception.  Keep  up  the  exceptions  on 
all  important  rulings  to  the  latest  moment.  The  best 
judges  may  err,  and  a  large  number  of  exceptions  can 
be  sifted  down  for  the  purpose  of  review.      Five  will 


96  TRIAL    PRACTICE. 

be  ample  for  a  higher  court,  but  twenty  may  be  good 
to  fall  back  upon  in  selecting. 

A  friend  was  badly  ruled  out  of  court  recently,  and 
quietly  said  :  "  It's  a  short  road,  and  beaten  track  to 
Lansing;  I  shall  be  able  to  get  there  in  term  time." 
And  he  did,  and  returned  with  a  complete  victory. 
The  coolness  reassured  his  client,  who  instantly  de- 
cided to  aid  in  a  final  review  and  hearing,  where  mis- 
takes, if  made,  are  legalized. 

Belief  in  a  case  should  extend  through  the  trial  and 
court  of  last  resort.  There  is  no  reason  why  counsel 
who  once  look  up  the  law,  and  determine  that  they 
are  well  grounded  in  their  belief,  should  surrender  on 
a  single  defeat  in  any  case.  The  clear  grit  plan  will 
lead  to  a  firm,  silent,  but  persistent  contest  to  the  bit- 
ter end.  Belief  in  victory,  helps  to  win  it.  "  Thrice 
is  he  armed,  who  hath  his  quarrel  just."  There  is  no 
evidence  like  a  good  case. 

ONE  OPINION. 

The  world  has  but  one  opinion  of  a  man  at  a  time. 
With  the  very  wide  influence  of  the  press,  every  bad 
thing  is  sure  to  be  noted  and  extended  If  a  lawyer 
loses  too  many  cases,  or  runs  too  much  in  a  single  rut> 
adopts  a  special  line  of  practice,  gives  too  much  time  to 
politics,  charges  too  high  fees,  is  inclined  to  sporting 
or  fastness,  public  opinion  will  soon  take  his  measure, 
and  for  years  after  will  hold  it  in  memory. 

In  a  very  busy  world,  where  every  man  is  full  of  his 
own  affairs,  there  is  too  little  time  to  weigh  character. 
A  single  reporter  of  a  single  paper  may  set  on  foot  a 


ONE    OPINION.  97 

story  of  a  great  man's  victory  that  makes  his  reputa- 
tion for  a  quarter  of  a  century,  simply  for  the  reason 
that  no  other  reporter  for  another  paper  is  likely  to 
contradict  the  statement,  it  being  printed  —  and  one 
man's  opinion  only  —  it  weighs  against  a  score  of 
years  in  character  building. 

Some  men  will  outlive  injury  to  character.  Theo- 
dore Tilton  is  an  example.  Some  will  struggle,  but 
remain  scarred  by  it,  like  Conkling,  who  rallies  like  a 
true  Roman  ;  others  will  surmount  it,  like  Arthur. 
The  force  of  circumstances  aided  each  in  the  ending 
of  his  trouble. 

The  American  people  love  idols.  They  have  some 
pet  in  every  community,  city  and  State.  They  succeed 
for  a  season,  go  out  like  a  candle  burned  down  and 
discarded.  This  is  peculiarly  American.  The  higher 
a  man  goes,  the  more  liberally  they  reward  him  ;  the 
lower  he  sinks,  the  harder  they  hate  him. 

When  Grant  took  the  sword  of  Lee,  and  received 
the  surrender  of  an  army,  he  was  applauded  and 
treated  as  a  conqueror  and  king.  His  trip  around  the 
world  was  a  continued  ovation  ;  his  meeting  with  the 
Queen,  who  walked  down  twenty-eight  steps,  and  held 
out  both  hands  to  show  him  welcome  ;  his  arm-in-arm 
walk  with  Prince  Bismarck;  his  passing  under  the 
Giant  Arch  at  Jerusalem,  and  return  by  the  Golden 
Gate,  and  later  through  Old  Mexico,— would  seem  to 
be  honor  enough  for  a  monarch  to  enjoy.  But  how 
soon  were  the  scenes  shifted  at  the  Chicago  Conven- 
tion !  The  world  had  but  one  place  for  Grant.  They 
had  made  him  a  military  hero,  and  were  determined 
that  was  enough  for  one  man,  and  it  was  the  highest 

(7) 


98  TRIAL    PRACTICE. 

honor  he  can  achieve  while  living — once  removed  be- 
yond the  possibility  of  rivalry,  and  he  will  be  praised 
with  great  freedom. 

Lawyers  have  this  to  remember :  If  they  seek  Con- 
gress they  are  looked  upon  as  Congressmen,  and  their 
legal  reputation  changes.  If  they  seek  criminal  prac- 
tice (next  thing  to  Congress),  they  will  be  known  as 
criminal  lawyers.  If  they  are  fair,  open,  generous, 
that  reputation  will  cling  to  them.  There  is  no  class 
so  much  the  architects  of  their  own  fortunes  as  law- 
yers. 

INTEREST  IN   SPEAKING. 

Every  advocate  has  his  means  of  enforcing  attention. 
Some  are  intense,  some  graphic,  others  ironical,  and 
many  attractive  aside  from  the  general  argument.  Few 
men  ever  sustain  at  any  length,  a  long  line  of  eloquent 
periods.  In  a  speech  of  many  hours,  but  a  few 
moments  in  all  will  approach  true  eloquence.  But 
with  a  subject  of  public  interest,  much  of  the  speeches 
made  to  an  audience  is  the  story  of  the  matter  in  ques- 
tion. So  the  story  of  a  case  is  always  its  chief  inter- 
est. If  a  eubject  is  dry  and  void  of  sentiment,  deep 
earnestness  in  attending  to  its  details  is  all  that  counsel 
can  add  to  his  ordinary  duty.  No  matter  how  dry  it 
is,  there  is  one  party  (your  client)  deeply  interested  in 
the  issue,  and  you  are  bound  to  share  his  intensity. 
Stories,  illustrations,  examples  and  good  humored 
treatment  of  others  will  awaken  an  interest,  and  hold 
attention  when  you  most  need  listeners.  The  heart  of 
an  advocate  must  be  warm,  and  beat  responsive  to  the 
music  of  good  jokes  and  apt  answers  of  witnesses,  for 


BUIEFS.  09 

of  all  things  pleasing  in  a  courtroom,  none  is  more  rel- 
ished than  a  joke  from  a  witness  on  his  examiner. 

BRIEFS. 

From  the  moment  a  case  comes  to  the  office,  to  the 
collection  of  a  judgment,  interest,  and  constant  interest, 
must  be  paid   to   its  details  ;  make  it  your  own,  is  an 
excellent  way  to  manage  anothers  dispute.     Cut  it  as 
short  as  possible  without  sacrifice,  but  keep  it  in  mind, 
and  tile  away  with  every  case  a  clear  statement  of  par- 
ties, their  address,  and  the  residence  of  witnesses,  as 
well  as  reference  to  their  part  of  the  testimony,  and 
the  leading  cases  relied  upon  for  trial  day.     This  will 
prevent  confusion,  and  enable  another  to  be  called  in 
and  try  it  in  your  absence  intelligently.     To   this  end 
a  brief,  is  of  all  things,  essential  at  the  earliest  stage 
of  all  retainers.     Make  at  once  a  clear  brief,  and  file 
it  away   for   immediate    reference.      Cases    come    on 
oftener  at  random  than  by  any  note  of  warning.     See 
to  it  that  you  are  ready  and  waiting  for  trial,  and  lack- 
ing in  nothing  on  your  part  to  make  it  a  victory.    Many 
a  lawyer  has  lost  his   suit,  that  by  a  little  care  could 
have  been  gained  easily.    The  best  tried  cases  are  those 
handled  by  young  enthusiastic  lawyers,   full  of  their 
facts,  and  deeply  read  up  on  the  law  of  the  subject.     It 
is  not  safe  even  to  rely  upon  memory,  a  clearly  written 
brief  of  points  in  a  good  bold  hand,  is  the  surest  way 
to  success  on  trial  days. 

This  preparation  leaves  you  room  for  other  think- 
ing. It  paves  the  road  that  leads  to  the  jury.  How 
can  counsel  hope  to  explain  matters  all  muddled  in  his 


100  TRIAL    PRACTICE. 

own  brain,  to  a  dozen  men  with  minds  untrained  on 
such  subjects?  It  is  one  of  the  chief  things  of  all  to 
remember  in  practice,  that  clearness  is  itself  full  of 
interest.  Be  lucid,  graphic,  intense,  attentive  and 
alive  to  the  interest  of  clients,  and  you  must  succeed. 

GREELEY'S  "  BIG   TREE.-' 

Horace  Greeley,  while  on  a  trip  to  California  in  1857,. 
visited  the  Mariposa  Valley  and  the  Big  Tree  region 
to  describe  the  mammoth  cedars  through  the  Tribune. 
He  had  measured  one  about  a  hundred  feet  around 
when  the  guide  begged  him  to  wait,  and  said  he  had 
found  a  larger  one.  "  Never  mind,  never  mind,"  said 
the  ready  witted  Horace,  "  they  wont  believe  this  win  it 
they  see  it  in  the  Tribune.  Where  they  are  all  unrea- 
sonable, I'd  rather  mention  a  medium  tree." 

Horace  would  have  made  a  good  lawyer.  There  is 
more  than  one  story  told  in  court  by  witnesses  not  be- 
lieved, simply  because  they  measure  too  big  a  tree. 
The  mind  will  carry  about  so  much  and  no  more. 
The  average  advocate  proves  too  much  in  many  cases  ; 
and  witnesses  tell  unreasonable  stories. 

To  believe  that  one  man  in  an  assault  case  would 
injure  another  without  cause,  is  not  in  accord  with 
human  reason.  To  claim  that  one  is  wholly  right,  and 
the  other  is  all  wrong  in  a  .quarrel,  is  not  the  right 
sized  tree  for  an  average  jury.  Men  are,  in  many 
respects,  like  Charles  Keade's  hero.  They  put  them- 
selves in  the  place  of  another  quite  often. 

The  best  reasoners  are  mindful  of  human  weakness. 
and  reach  conclusions  only  after  a  fair  investigation. 


greeley's  big  tkee.  I'll 

So  that  the  sage  saying  of  the  wise  journalist  is  apt  in 
trials.  Don't  measure  too  big  a  tree.  They  won't 
believe  it  if  you  get  it  in  evidence. 

Trained  judgment  alone  would  dictate  this  caution. 
Mr.  Greeley  was  a  master  of  human  reason.  He  took 
in  the  future  at  the  same  glance  that  others  looked  at 
the  present.  It  was  to  him  not  to-day  only,  but  the 
great  second  thought  of  to-morrow  that  governed. 
Accuracy  in  judgment,  to  be  able  to  read  the  will  and 
average  opinion  of  men,  is  a  rare  gift  in  advocacy. 
Juries  in  the  box  are  only  men,  neither  greater  nor 
brighter  nor  truer  than  an  equal  number  selected  and 
spoken  to  outside  of  a  court  trial.  The  common  sense 
of  twelve  men  is  about  the  average  sense  of  the  com- 
munity. The  chief  difference  being  that  they  hear 
the  evidence.  But  take  the  story  of  a  mean  witness 
that  no  one  would  credit  if  read  in  the  papers,  and  a 
jury  will  apply  nearly  the  same  rule  to  his  evidence. 
Witnesses  are  never  wholly  believed  on  both  sides,  for 
in  most  cases  there  are  Hat  contradictions.  The  most 
reasonable  and  likely  statements  are  most  readily 
credited  as  truthful. 


102  TRIAL    PRACTICE. 


CHAPTER  XII. 


CANDOR    AND  DIGNITY. 


Parlor  talk  is  more  taking  than  loud  tones  and  vehe- 
ment manner.  Not  that  earnestness  can  be  replaced 
by  soft  tones  altogether,  but  modulation  being  the 
music  of  all  oratory,  it  requires  low  tones  to  reason, 
strong  ones  to  denounce,  and  words  full  of  feeling  to 
move  the  sympathies.  The  tones  that  capture  the 
judgment  and  overcome  prejudice  are  full  of  kindness 
and  music.  Human  nature  is  more  easily  coaxed  than 
driven  to  act  against  the  will,  and  politeness  opens 
many  a  door  that  scurrility  would  have  locked  and 
bolted. 

I  remember  an  occasion  of  a  man  calling  at  an  office 
where  there  was  a  director's  meeting,  with  closed 
doors,  and,  after  rapping,  he  said  gently  through  the 
letter-box  opening:  "  Bitte,  Ilerr  French/  may  I 
speak  just  a  moment  Avith  you?  It's  very  important." 
The  two  words,  "Please,  .Mr.,"  before  French 
brought  the  door  open  instantly,  while  he  might  have 
pounded  an  hour,  and  no  one  noticed  him. 

Kindness  is  a  Yale  key  that  unlocks  the  strong  com- 
bination of  many  a  heart-door  closed  to  harshness.  If 
one  would   influence  another   with    reason,  he  should 


("AXDOR    AND    DIGNITY.  103 

couch  his  part  in  modest  words  that  reach  the  finest 
impulses. 

I  remember  a  salesman  of  cheese-safes  who  was 
very  successful.  He  would  point  to  a  few  good  things, 
and  rest  patiently  for  the  offer  to  take  effect,  and 
never  attempt  to  argue  the  objections  raised  by  an- 
swers other  than  simply  pointing  to  the  good  things  of 
his  article  for  sale,  and  finding  their  position  not  so 
serious  as  to  need  combatting  with  argument,  he  sue- 
ceeded  in  his  sales  admirably. 

Lessons  of  this  kind  are  found  apt  and  suggestive  to 
a  lawyer,  who  meets  opposition  at  every  step  of  a 
court  contest  or  settlement.  Better  by  far  to  listen 
patiently,  and  even  take  a  little  abuse,  if  you  have  the 
closing,  than  enter  into  a  wrangle  and  quarrel  all 
through  on  little  things  that  never  reach  the  core  of 
the  controversy. 

In  a  famous  case  in  New  York,  where  Judge  Beach 
prosecuted,  a  lawyer  from  the  interior  objected  so 
much  to  evidence  for  incompetency,  that  all  were  be- 
coming tired  of  his  intolerable  bother  and  delay. 
Finally,  the  court  reprimanded  his  captious  style  of 
practice,  and  Judge  Beach  raised  in  his  chair,  and 
with  a  tone  I  shall  never  forget,  said  :  "  I  thank  your 
Honor!"  The  effect  was  more  than  a  dozen  -harp 
answer-.  He  had  borne  it  long  enough  for  the  enemy 
to  come  in  reach  of  his  gun,  and  killed  the  whole 
wrangle  with  a  single  shot. 

There  is  no  more  stinging  reply  than  a  look  of  con- 
tempt, and  an  action  to  match,  especially  if  the  saying 
or  interruption  is  contemptible.  So  much  of  outside 
feeling  enters  into   a   jury's  muling,  and  so  much   of 


104  TRIAL    PRACTICE. 

reading  between  the  lines  goes  on  during  trials,  that  the 
Guitcau  style  of  firing  off  a  stale  reply,  or  impertinent 
(and  attempted)  witty  remark,  is  fast  losing  caste  in 
good  practice. 

Good  trial  lawyers  start  without  jockeying,  and  win 
without  breaking.  The  keenest  observers  of  a  race 
soon  sympathize  with  the  honest,  even  trotters,  and 
dislike  one  that  breaks  up  and  gets  unsteady  ;  and  so 
in  trials,  the  man  selected  in  important  cases  is  not 
chosen  for  sharpness  or  petty  wit,  or  a  trick  to  play 
with  a  jury,  but  for  some  sterling  quality  of  skill  and 
adroitness  or  eloquence  that  is  likely  to  reach  the  real 
merits  of  the  contest,  and,  if  possible,  cut  the  knot  for 
the  court  or  jury. 

It  is  bad  enough  that  people  must  go  to  law  to  ob- 
tain their  rights  of  dispute.  But  counsel  who  will 
badger  them  with  vile  names,  and  their  lawyers  with 
meaningless  nonsense,  deserve  to  be  beaten  as  an  ex- 
ample. 

Candor,  absolute  honor  and  fair  dealing,  are  not  only 
essential  to  success  in  practice,  but  they  carry  with 
them  character  and  clientage,  and  unite  the  disputants, 
while  they  elevate  the  standard  and  dignity  of  the  pro- 
fession. We  can  all  remember  the  bo}'S  who  de- 
claimed "  funny  pieces  "  at  school,  but  the  most  im- 
pressive speeches  were  of  words  fitly  spoken,  and  full 
of  sense  and  wisdom,  delivered  with  dignity  and  can- 
dor. 


FKEQUENT  OBJECTIONS 

er  and  more  direct  way  o 
idence,  the  better  for  court,  counsel  and  jury.     One 


The  smoother  and  more  direct  way  of  admitting  ev- 


FREQUENT    OBJECTIONS.  l'»."> 

who  raises  captious  questions,  and  worries  the  patience 
of  all  by  a  running  line  of  "We  object,"  "We  ob- 
ject," without  good  solid  grounds  for  the  objection,  is 
losing  his  case  as  fast  as  possible. 

The  course  of  a  court  trial  is  more  or  less  tedious 
as  counsel  see  fit  to  make  it.  No  wonder  that  juries 
are  sickened  by  unprofitable  quibbles.  Objecting  calls 
off  the  mind  from  vital  issues,  confuses  witnesses  and 
prolongs  testimony.  All  this  is  noted.  Opposite 
counsel  are  irritated,  and  take  advantage  of  the  time 
iu  naively  hinting  to  the  jury  that  something  they 
would  show  is  headed  off,  least  it  may  hurt  the  ob- 
jector. More  is  said  in  the  argument,  worse  words  are 
used,  and  a  worse  effect  produced,  than  could  be 
made  if  the  real  facts  were  admitted. 

Then  we  have  three  serious  effects  to  overcome  iu 
argument:  A  court's  displeasure,  a  counsel's  hints, 
and  a  jury's  prejudice.  They  have  heard  the  offer  to 
show  ;  they  assume  it  is  truthful  ;  they  know  it  must 
be  bad,  or  it  would  not  have  been  questioned.  Then 
when  we  think  of  that  love  of  fairness  which  juries 
must  have  carried  all  through,  and  that  comes  to  re- 
mind them  how  each  side  has  been  heard  and  well 
treated,  we  can  only  wonder  at  the  sharp  practice 
style  of  attempted  interruptions.  There  is  but  one 
opinion  about  lawyers,  fair  or  unfair,  in  trials.  They 
cannot  retain  their  self-respect  by  unfairness,  nor 
their  clientage  by  tediousness.  The  wearing-out  pro- 
cess is  long  out  of  date,  and  the  sooner  the  issue  is 
determined,  the  better  for  counsel  and  client. 


106  TRIAL    PRACTICE. 

TALKING  TOO   MUCH. 

"  Pleasant  words  are  sweet  to  the  soul." 

Aaron  Burr  made  a  rule  of  thirty  minutes  speeches. 
That  is  a  little  too  short  for  most  men  to  conclude 
their  stating  portions  of  an  argument.  But  Burr  al- 
was  commenced  in  the  middle  and  cut  both  ways,  with 
vivid  intensity  he  reached  the  vital  issue  and  held  it 
like  a  quivering  victim  in  his  toils,  till  he  mastered  the 
issue  and  convinced  his  hearers. 

Most  advocates  start  too  far  away,  and  end  long 
after  the  end  is  out  of  sight  and  out  of  hearing. 
Once  well  told  is  told  enough.  One  good  reason  need 
not  be  worn  thread-bare  by  over-handling,  and  when 
a  counsel  goes  off  into  science,  metaphysics  and  gene- 
ralities over  minor  matters,  he  dulls  the  edge  of  reason 
and  tires  his  jury. 

There  is  such  a  strong  disposition  to  cut  across  lots 
in  business,  and  juries  are  so  wTell  informed,  and 
should  be  so  fully  convinced  by  the  testimony,  that 
speeches  are  lost  if  made  tiresome.  Men  have  a  right 
to  look  for  apt  words.  "  A  word  spoken  in  due  sea- 
son, how  good  it  is."  "He  that  hath  knowledge, 
spareth  his  words."  One  had  better  say  too  much 
than  too  little,  but  just  the  right  thing  will  be  neither 
extreme. 

Careful  attention  will  show  the  stopping  point,  and 
place  the  closing  period  where  the  end  should  be,  be- 
fore the  sharp  point  is  over-worded.  Endless  talkers 
are  sure  to  lose  their  grip.     It  is  the  man  who  talks 


TALKING    TOO    MUCH.  107 

little  and  in  pithy  sentences  that  wins  suits  and  settles 
differences.  Constantly  objecting,  or  frequent  side 
cuts  of  interruption,  may  require  some  lively  sparring 
to  get  even,  but  the  telling  speeches  are  the  short, 
sharp,  clear  cut  stinging  ones  that  pierce  to  the  heart 
like  a  swift  arrow  and  execute  the  will  of  the  advocate. 
Witness  the  address  of  McReynold's  in  the  Stevens' 
Insurance  suit,  where  talent,  character  and  eloquence 
were  arrayed  in  force  against  a  country  lawyer,  who, 
with  a. period  seldom  equalled  in  an  any  language,  told 
more  in  ten  minutes,  than  hours  of  round  about  rea- 
soning could  accomplish.  Judge  Curtis,  whose  opin- 
ion is  second  only  to  Beach's  in  America  —  and  in  this 
case  shared  in  by  the  latter  —  says  of  this  Reynold 
closing  *  :  "  It  is  a  gem  in  English  literature,  sub- 
lime in  sentiment,  eloquent  in  heart  thoughts,  grand 
in  its  simple  simplicity.  Who  could  resist  such 
strength  of  reason,  combined  with  his  power  of  vivid 
pathos."      Here  is  part  of   it : 

"Even  now,  by  your  silence  and  interest  in  this 
case,  1  hear  you  say  stop,  delay  not  longer,  let  us  be- 
gin the  work  of  justice  !  Stop  till  we  right  this  wrong 
at  once  !  Stop  till  we  restore  these  orphan  children  to 
their  own,  to  that  character  they  will  love  to  honor  — 
a  character  as  pure  as  they  believed  it  on  that  last  sad 
night,  the  night  before  the  night  of  death  !  Stop  till 
we  give  a  verdict  and  a  vindication  !  " 

Judge  Beach  was  more  especially  pleased  with  the 
passage  of  the  accident  just  before  the  one  quoted, 
which  he  pronounces  rare. 

"I  can  see  her  now,  as  plain  as  yesterday.  It  is 
evening.     It  is  twilight.     The  snow  is  falling  fast  and 


108  TRIAL   PRACTICE. 

slippery,  whitening  the  little  white  walk  to  the  cistern. 
She  is  confused  ;  she  has  company.  She  seizes  the  pail, 
hurries  to  the  cistern,  catches  up  the  hook,  leans  over 
the  curbing,  Slips  !  Falls  !  the  water  covers  her  !  No 
one  hears  her!  She  is  drowned  !  It  is  an  accident." 
(See  Modern  Jury  Trials.) 


ON    HIS    MERITS.  10'.f 


CHAPTER  Xlir. 


OX    HIS  MERITS. 


The  success  of  a  doctor  may  be  aided  by  good  nurs- 
ing, and  nature's  efforts  to  revive  the  patient.  In 
eight  cases  out  of  ten,  except  in  seasons  of  epidemic, 
rest  and  a  natural  vitality  will  withstand  ordinary  dis- 
eases. This  fact  gives  doctors  a  great  reputation,  but 
such  is  not  true  of  lawyers,  whose  clients  once  in 
trouble,  generally  stay  in  for  a  good  season,  and  no 
reputation  can  be  made  in  law,  save  on  the  merits  of 
the  lawyers. 

Some  may  dream  that  wealthy  relatives  will  do  it  ; 
some  that  influential  friends  can  elevate  one  to  power 
and  position  —  and  they  may  for  a  brief  season  —  but 
the  lawyer  has  one  road,  and  one  only  :  he  must  win 
for  himself,  and  be  as  much  independent  of  relatives, 
friends  and  riches,  as  if  rowing  a  boat  race  ;  mettle, 
and  mettle  alone,  must  count  in  him  if  he  conquers. 
Cheers  help  a  speaker,  but  no  amount  of  cheers  win  a 
law  suit.  Wealth  helps  one  socially,  but  not  in  a  law 
suit,  before  a  jury,  to  any  great  extent. 

There  may  be  instances  of  purchased  positions,  but 
they  are   clerical   or  secondary   places;    there   maybe 


110  TRIAL    PRACTICE. 

corporation  counsel  appointments,  where  wealth  turns 
the  scale,  and  secures  the  place  for  a  favorite  ;  but 
corporations  are  none  to  ready  to  rely  on  other  than 
actual  merit  in  legal  matters.  So  that  at  the  outset  a 
strange  feeling  must  come  over  a  young  student  in  his 
early  practice  ;  that  he  must  make  his  own  way  in 
practice,  and  to  preferment,  unaided  by  anybody. 

There  is  one  source  of  encouragement  in  this  thought 
to  the  worthy,  and  that  is  the  fact  that  he  will  own  his 
honor  when  he  earns  it.  It  may  stimulate  his  energy 
in  character  building,  which  of  all  things  is  the  best 
capital  in  practice.  It  may  urge  him  to  braver  work, 
and  nerve  him  to  endurance,  to  reflect  that  in  the  legal 
arena  he  is  struggling  alone,  for  a  name  of  winning 
cases,  and  earning  fame,  that  with  the  lookers  on,  are 
the  friends  and  relatives  who  will  cheer  his  first  victory, 
but  he  is  the  racer,  who  must  out  run  others  to  secure 
it,  and  probably  it  does  cheer  him,  for  few  are  so 
careless  of  a  good  name  as  not  to  desire,  and  wish  to 
deserve  one,  for  this  reason,  if  for  no  other,  the  legal 
profession  opens  a  broad  arena  of  competition.  There 
is  no  storekeeper,  dealer  or  merchant  who  meets  an 
equal  competition  with  the  lawyer. 

His  way  is  beset  with  tricks  and  accidents.  His 
client  may  be  honest,  and  may  be  knavish.  He  may 
be  wise,  and  is  more  likely  to  be  foolish.  He  may  be 
discreet,  but  has  more  likely  given  away  his  case  in 
some  left  handed  letter,  or  admission  where  opposite 
counsel  will  say  "  we  have  the  best  of  witnesses  —  a 
confessing  defendant,"  and  mean  it.  But  while  the 
law  never  requires  of  one  to  do  impossible  things,  it 
has  said  in  a  wise  maxim  that  "  reason  is  the  soul  of 


OX    HIS    MERITS.  Ill 

law,"  and  all  one  really  needs  is  earnest  endeavor  and 
common  sense  to  reach  the  true  basis  of  practice. 

The  rare  chance  may  not  come  in  the  beginning.  It 
may  come  later.  Most  good  lawyers  mature  well 
along  in  life,  with  gray  hairs  and  increased  confidence  ; 
with  cases  won  and  large  experiences  ;  with  friendships 
made  that  turn  into  line  quickly  when  one  is  known 
to  be  successful.  Such  is  the  whim  of  human  nature 
that  once  on  the  wave  of  popular  favor,  every  one  who 
knows  you  is  pleased  to  be  friendly  and  joyous  at  your 
victories. 

"Who  did  not  know  that  Garfield  was  great,  and 
would  exceed  Grant's  popularity  in  Chicago?  Who  was 
more  willing  to  call  Grant  great  while  away  over  the 
water,  standing  at  the  foot  of  the  high  stone  steps,  as 
Queen  Victoria  came  down  and  held  out  both  hands  to 
greet  him?  Who  did  not  thrill  with  pride  as  he 
marched  arm  in  arm  with  Bismarck?  and  later  rode 
through  Jerusalem  in  triumph?  rounded  the  Globe 
and  landed  at  the  golden  gate  of  his  native  shores  ; 
called  out  vast  crowds  to  greet  him,  and  was  the  lion 
of  two  Continents? 

Such  is  life,  and  such  is  victory.  Success  makes 
friends,  and  defeat  makes  enemies.  The  world  will 
bow  in  season,  or  growl  in  season.  Let  one  slip  like 
Colfax  —  once  one  of  the  greatest  of  senators  —  how 
soon  were  his  enemies  ready  to  belittle  his  honesty? 
See  Conkling,  one  of  the  most  brilliant  of  statesmen, 
and  whom  millions  believed  the  leader  of  all  stalwarts, 
how  soon  he  was  maligned  by  slanders? 

But  the  glory  of  the  lawyer  is  his  strength.  His 
knowledge  and  acumen  must  be  forever  respected.     It 


112  TRIAL   PRACTICE. 

is  his  lasting  capital.  Fires  never  burn  it ;  slanders 
cannot  kill  it.  Distance,  time  or  rivalry  cannot  de- 
stroy a  man's  legal  capital  actually  acquired  and  fre- 
quently tested.  This  is  the  merit  of  the  whole  mat- 
ter. What  one  owns  in  knowledge  is  his,  is  valuable, 
is  lasting. 

.SHARP  PRACTICE . 

The  worst  thing  that  can  ever  happen  to  a  young 
lawyer,  is  to  believe  that  he  is  smarter  than  the  aver- 
age. If  he  gets  that  notion  before  others  learn  it, 
and  commences  to  play  the  low  trieks  of  taking  snap 
judgments,  he  is  known  to  be  on  the  high  roads  to  in- 
famy by  all  good  advocates. 

A  thousand  and  one  cases  occur  in  practice  that 
make  counsel  rely  on  each  other  for  courtesies,  and 
extensions,  that  appeal  to  sense  and  reason,  and  can 
better  be  granted  than  denied,  and  never  should  be 
treated  with  captious  dealing  or  little  advantages  that 
are  always  unprofessional.  Absence  from  home,  sick- 
ness, or  engaged  elsewhere,  have  often  been  used  by 
some  to  make  costs  to  clients,  and  bring  discredit 
to  his  counsel  by  a  long  wrangle  to  reinstate  himself 
in  the  lost  opportunity.  An  advantage  so  gained  would 
be  but  faded  laurels  to  deck  the  brow  of  an  advocate's 
good  name,  which,  after  all,  is  better  than  great 
riches. 

It  does  seem  silly  and  senseless  to  practice  such  arts 
and  deceits,  for  they  are  not  arts  in  business,  when  the 
readiest  means  of  making  friends  is  fairness.  There 
is  no  art  like  the  system  of  fair  play.     As  soon  should 


TURNING    VERDICTS.  113 

one  strike  a  child  or  a  woman,  or  a  man  when  down 
and  disabled,  as  to  take  mean  advantage  in  a  counsel's 
absence. 

This  fairness,  is  of  course,  limited,  and  must  be  gov- 
erned by  firmness,  else  some  indolent  attorney  will  be 
ready  to  use  it  as  a  means  of  undue  extension.  The 
border  line  of  where  courtesy  ends,  and  right  asserts 
itself,  is  generally  well  marked  and  easily  followed. 
A  high-minded  lawyer  will  win  his  cases  on  their  mer- 
its, and  can  easily  be  selected  from  one  who  trifles 
with  confidence,  and  this  leads  to  the  fact  that  is  vital 
in  practice :  A  clear  knowledge  of  the  character  of 
one's  fellow  lawyers.  Many  a  man  would  be  better 
trusted,  if  better  known,  and  a  few  would  never  be 
trusted  so  well  after  their  conduct  was  proven.  It  is 
safe  to  overcome  evil  with  good,  and  assume  that  none 
are  so  bad  that  could  not  fall  lower,  and  he  is  a  hard 
man  that  would  injure  another  wilfully. 

The  worst  of  all  things  about  sharp  practice  is  the 
bad  name  that  follows  its  author.  No  one  can  be 
mean  with  his  neighbors,  and  hold  their  respect  or 
confidence.  Sooner  or  later  they  will  be  detected  and 
branded  as  tricksters  or  sharpers,  and  who  can  recover 
from  the  title  of  a  traitor?  The  most  contemptible 
dealing  in  life  is  that  of  left-hander/,  underhanded  ad- 
vantages. 

TURNING   VERDICTS. 

During  a  slander  trial  in  an  eastern  city,  which  prac- 
tically involved  the  character  and  chastity  of  a  beauti- 
ful young  lady,  the  plaintiff  became  very  much 
affected   by  the  issue,  and    made    this  appeal  to   her 

(S)  '3?2- 


114  TRIAL    PRACTICE. 

counsel:  "O!  sir,  may  God  and  the  saints  protect 
you  !  You  hold  my  good  name  in  your  keeping  !  Do 
your  best  for  my  sake  !  Talk  to  the  jury,  if  their  sister 
or  their  child  had  been  used  as  I  have,  how  they 
would  feel  toward  the  one  who  caused  it !  Plead 
with  them  !  Don't  sit  down  till  they  see  my  wrong 
as  you  do  !  "  This,  said  counsel,  so  nerved  me  that  I 
brought  out  in  argument  an  imaginary  interview,  which 
at  once  secured  the  interest  and  good  will  of  the  jury, 
and  a  verdict  of  heavy  damages.  Her  suggestion,  he 
adds,  was  the  most  taking  of  all  things  to  be  said  in 
her  behalf. 

In  a  railroad  case  with  seven  witnesses  to  one,  he 
used  these  taking  paragraphs  : 

Gentlemen: — The  case  of  this  obscure  man  is  be- 
fore vou.  You  have  seen  him  battling  against  all  the 
power  of  a  great  corporation.  The  defendant  is  one 
of  a  confederacy  of  corporate  monopolies  that  is  grad- 
ually if  not  rapidly  stealing  the  lands  and  franchises 
of  the  American  people.  Before  the  day  when  England 
oppressed  the  people  of  India,  through  the  East  India 
Company,  great  corporate  powers  as  sanctioned  by 
law,  were  not  understood  to  be  vested  in  individuals 
comprising  or  constituting  corporations,  and  certainly 
•never  expressed.  The  history  of  legislation  in  Great 
Britain  and  the  United  States,  demonstrates  clearly 
that  the  powers  and  privileges  of  corporate  bodies 
have  grown  until  they  overshadow  and  oppose  the 
rights  of  the  people.  In  this  country  alone  they  have 
permeated  into  the  Executive  Mansion  ;  have  poured 
the  lejprosy  of  corruption  into  legislative  enactments, 
and  administered  the  law  from  the  bench. 


READING    LAW.  115 

Take  the  single  example  of  the  State  of  Texas.  It  has 
an  area  of  six  to  seven  times  the  size  of  New  York,  com- 
prising 144,000  more  square  miles  than  the  Empire  of 
France  before  the  fatal  day  of  Sedan.  On  its  broad 
plains  roam  millions  of  cattle  ;  and  the  beef  of  Texas 
is  eaten  to-day  in  London,  and  on  the  banks  of  the 
Ganges.  Along  its  water  courses,  and  in  its  mountain 
gorges  are  mineral  deposits  as  rich  as  those  that  fas- 
cinated the  gaze  of  Caesar  orPizzarro.  It  has  a  wealth 
of  live  oak  timber  capable  of  constructing  the  modern 
vessels  of  the  world.  Still  this  great  commonwealth 
is  given  over  to  the  spoiler.  Its  people  deprived  of  its 
lands,  and  its  labor  taxed  to  pay  tribute  to  railroads 
and  corporations,  the  worst  of  all  the  monopolies  of 
the  land. 

Gentlemen,  it  is  true  that  we  have  but  one  witness 
against  this  mighty  plaintiff  and  its  seven  champions. 
But  my  client  is  hopeful,  for  />>  is  right.  He  has 
dropped  the  anchor  of  his  fate  in  your  consciences, 
and  patiently  abides  the  issue  with  unfaltering  confi- 
dence. 

READING    LAW. 

A  great  teacher  of  Shakespeare  kept  telling  his 
students  they  must  read,  and  read,  and  read,  to  know 
the  great  author  :  and  one  said,  "  What  shall  I  read, 
Professor?  "  "  Read,"  said  the  teacher,  "  read  every 
thing :  anything ;  all  reading  helps  to  understand 
Shakespeare."  This  is  a  hint  to  a  lawyer  ;  read  much, 
read  often,  read  constantly.  Master  the  details  of 
law  and  its  surroundings.  It  will  all  help  ;  it  will  be 
a  fountain  to   draw  from,  and   a  wealth  of  learning  is 


llti  TRIAL    PRACTICE. 

always  useful.  The  time  will  come  when  you  can  use- 
it.  Fuller's  success  in  the  great  Rubber  Patent  cases- 
of  New  York,  was  from  his  accurate  knowledge  of  the 
theme.  Webster  saved  stories  ten  and  fifteen  years- 
lief  ore  he  found  a  place  for  them  in  argument.  He 
drew  from  Walter  Scott,  in  his  Bunker  Hill  monument 
speech,  from  the  same  author  in  another  fine  picture, 
and  seldom  addressed  the  senate  without  borrowed  fig- 
ures of  beautiful  imagery.  Everett  in  his  "thrice 
welcome  to  General  Lafayette,*'  has  three  excellent 
Bible  sayings,  and  every  speaker  of  national  note  is  a 
borrower  or  a  gleaner  of  others  thoughts  and  sayings, 

(iood  things  said  are  carried  away  and  help  to  make 
a  speaker's  character.  Sooner  or  later  if  one  is  ripe, 
and  full,  and  fluent  in  good  thoughts,  whether  culled 
from  the  classics  or  the  doings  of  daily  life,  he  will  be 
marked  and  remembered,  as  Robert  Collier  is,  for  his 
research  and  ripeness  in  scholarship.  No  one  can  learn 
too  much,  no  one  can  know  too  much,  no  one  can  be 
rounded,  and  full  as  a  fountain  of  life  thoughts,  with- 
out reading  and  travel. 

The  standard  text  books  are,  of  course,  the  founda- 
tion. These  should  be  read,  and  their  salient  rules 
and  principles  written  out  by  the  student  and  large 
portions  committed.*'  Principles  should  be  memorized 
and  repeated  often  by  recitations  to  each  other  like  a 
grammar  lesson.  It  is  not  what  we  read,  but  what  we 
write  out  and  make  our  own,  that  is  useful. 

Next  in  order  are  Special  Works,  now  so  common  and 
so  useful,  where  one  man  spends  years  in  bringing  the 
essence  of  fifty  volumes  into  one.  Such  reading  is  in- 
valuable.    It  is    a    brief  on    their    subjects    treated. 


CIRCUMSTANTIAL    EVIDENCE.  H< 

'These  are  the  standard  works  of  advance  practice.  I 
need  not  name  them  ;  to  read  them  is  to  enjoy  the 
latest  court  contests. 

There  is  another  class  of  law  books  that  arc  mere 
dictionaries  of  reference  —  the  reports  and  digests  of 
the  different  State  and  Supreme  Court  decisions.  No 
one  is  expected  to  read  them  all.  No  one  could.  Life 
is  not  long  enough  if  he  desired  to.  With  these  a 
•chance    acquaintance,    an    introduction,    at    least,    is 

useful. 

It  is  with  books  as  with  associates.  Some  are  good 
companions  ;  some  good  friends  ;  others  will  do  to  cul 
tivate,  and  may  become  friends  in  due  season.  Many 
a  gem  lies  hidden  away  in  a  book  that  has  for  years 
been  slighted  and  neglected.  But,  as  a  rule,  if  one 
reads  the  legal  journals,  weekly  and  monthly,  he  will 
find  the  useful  legal  literature  well  defined  and  suitably 

advertised. 

The  legal  profession  is  the  learned  profession,  and 
seeing  that  the  doctors  faithfully  report  all  amputa- 
tionSr tumors  and  strange  achievements  and  successes, 
I  have  often  wondered  why  more  attention  has  not 
been  paid  to  the  use  and  benefit,  the  experience  of  dif- 
•   ferent  lawyers  would  be  to  each  other  in  trial  practice. 

CIR<  TM>TAXTIAL   EVIDENCE. 

Many  strange  cases  of  circumstantial  evidence  are 
reported,  and  more  has  been  written  against  capital 
punishment  on  this  account  than  all  others  combined. 
Here  is  an  instance  of  strange  circumstances  ending 
strangely  : 


118  TRIAL    PRACTICE. 

In  1775  there  lived  near  London  one  Marble  who* 
owed  a  miller  £600.  Marble  was  known  to  leave 
home  with  the  mone}'  to  pay  the  debt,  and  after  a 
week's  absence,  foul  play  was  presumed  and  diligent 
search  instituted.  About  the  same  time  the  miller 
lost  a  dog  by  poisoning,  but  suspicioned  no  one,  and 
assumed  it  was  an  accident. 

The  authorities  called  on  the  miller,  Avho  had  seen 
Marble  receive  the  £600  from  bank,  and  asked  where 
Marble  had  gone  to.  The  miller  replied  that  he  had 
left  by  the  back  way  intending  to  call  on  a  hunter,  buy 
some  game  and  return.  That  it  was  in  the  evening 
when  he  left  as  stated. 

Great  excitement  prevailed.  Men  had  seen  Marble 
enter,  but  no  one  ever  heard  of  his  leaving  the  mill. 
Some  suggested  that  the  £600  made  him  a  prey  to 
robbers.  But  suspicion  soon  fell  on  the  miller.  He 
was  searched  willingly.  When  they  reached  the  cellar 
they  found  fresh  earth,  which  he  said  was  where  his 
dead  dog  was  buried.  Digging,  they  found,  not  the 
dog,  but  the  body  of  Marble  ! 

The  miller  stoutly  protested  his  innocence,  but  the 
hunter  suddenly  remembered  that  he  heard  blows  in 
the  mill  when  one  man  said:  "We'll  settle  all  our 
scores  here."  Doctors  said  the  blow  on  the  skull 
killed  Marble.  The  miller  grew  excited  and  protested 
his  innocence,  but  was  convicted  and  beheaded,  and 
the  people  thought  the  law  had  been  vindicated. 

One  day,  three  years  later,  a  gentleman  shot  a 
hunter  by  accident,  and  heard  him  scream.  Twelve- 
hours  later  he  was  found  dead,  and  in  his  hand,  with 
paper  stained  in  blood,  was  written  a  confession  that 


His    FIRST    CASE.  119 

h?,  Gordon,  the  hunter,  had  killed  Marble  for  his 
money,  and  buried  him  where  he  knew  the  dog  had 
been  buried,  having  first  removed  the  dog,  which  he 
had  also  killed  to  prevent  alarm  at  the  mill  where  he 
had  been  stealing  meal.  The  miller's  name  was  fully 
vindicated.     He  was  innocent. 

HIS  FIRST  CASE. 

There  is  a  rosy  halo  of  imagination  surrounding  a. 
young  lawyer's  ideal  of  professional  success.  He  im- 
agines, to  begin  with,  that  his  first  case  will  turn  the 
tide  of  his  whole  future  existence.  He  has  pictured 
to  himself  a  widow's  son  accused  of  a  dreadful  crime 
but  little  less  than  murder;  of  a  network  of  circum- 
stances which  his  keen  insight  will  unravel,  and  his- 
eloquence  shall  hold  up  to  the  jury  in  a  bashful, 
trembling,  pathetic,  original  and  eloquent  style  which, 
sways  the  minds  of  men  like  willows  in  the  wind.  And 
then,  when,  by  rising  in  their  seats,  they  utter  the 
welcome  words,  "  Not  guilty,*'  he  imagines  that  he 
will  lead  the  widow  through  the  crowded  throng  amid 
the  hushed  silence  of  an  admiring  people,  who  will  be 
ever  ready  thereafter  to  seek  him  out  in  times  of  legal 
danger. 

But  what  a  blunder  this  must  be  !  But  one  such  can 
in  a  million  ever  happen.  In  most  cases,  if,  by  a 
series  of  little  losses,  and  along  line  of  labor  (live 
years,  at  least),  a  lawyer  learns,  by  the  bitter  school 
of  experience,  that  people  who  go  to  law  are  cautious- 
in  hiring  new  lawyers,  and  more  cautious  of  suits  after 
the  first  one,  he  has  learned  to  bear  rebuffs  with  pa- 
tience, he  has  made  a  good  beginning. 


120  TRIAL    PRACTICE. 

Imaginary  cases  seldom  happen.  Imaginary  success 
Is  doubtful  in  any  business.  It  needs  contact  with 
reality  to  rub  the  dust  from  a  boy's  dreams  of  great- 
ness. 

This  case  that  I  am  to  speak  of  is  not  one  of  the  or- 
dinary occurrences  in  practice,  but  more  nearly  life- 
like than  a  boy-picture  ;  and  I  may  say  here,  that  i" 
believe  as  they  were  told  me,  the  central  facts  are  as 
true  as  Scripture.     I  use  his  words  : 

"  About  the  middle  of  June,  LS6-,  in  a  little  office 

on  G Street,  some  sixty  days  after  admission  to  the 

bar,  and  while  burning  witli  the  youthful  fires  of  en- 
thusiasm, I  had  written  some  friends  in  the  interior 
that  I  would  gladly  serve  them  in  any  capacity,  espe- 
cially if  they  ever  got  into  trouble.  Why  I  wrote  it  I 
never  knew.     Hardly  had  the  letters  time  to  reach  their 

destination  when  a  telegram  reached  me  from  Q , 

saying,  ««  Come  first  train  —  case  ahead." 

"I  don't  remember  much  that  happened  that  after- 
noon. I  paced  up  and  down  the  office,  taking  down 
first  one  book,  then  another  ;  glancing  at  Greenleaf  on 
Evidence,  Chitty  on  Pleading,  Green's  Practice  ;  look- 
ing over  the  law  books,  and  finally  I  thought  best  to 
examine  the  forms  of  trespass,  trover  and  attachment, 
thinking,  of  course,  that  a  store  must  be  closed  or  a 
swindler  prosecuted.    But  nothing  seemed  to  satisfy  me. 

"I  took  the  night  train,  and  slept  most  of  the  way, 
reaching  the  scene  of  action  early  in  the  morning.  I 
had  thoroughly  resolved,  before  leaving,  to  "take  as 
little  baggage  and  as  much  wit  as  possible,"  for  I  have 
always  considered  this  a  standard  maxim  in  all  cases. 
I  was,  therefore,  not  burdened  with  a  valise,  and,  tak- 


HIS    FIRST    CASE.  121 

ing  a  hurried  breakfast,  I  started  for  my  friend  who 
had  sent  the  telegram,  and  met  him  half-way  to  the 
Tillage  :  he  lived  in  the  suburbs.  He  was  not  long  in 
showing  me  the  situation,  and  together  we  soon  plan- 
ned the  campaign. 

"The  cause  of  action  was  murder,  and,  strange  to 
say,  little  was  yet  known  of  the  circumstances.  On 
the  night  previous,  while  the  quiet  villagers  were  about 
retiring,  between  the  hours  of  nine  and  ten  in  the 
evening,  a  shrill  scream  was  heard  from  the  banks  of 
the  river  Rasin.  some  eighty  rods  from  Main  Street. 
The  scream  was  quickly  followed  by  a  sound  resem- 
bling that  of  a  heavy  wagon  drawn  over  a  high  bridge. 
As  near  as  could  be  remembered,  the  words  uttered  in 
the  last  agony  of  death  were,  "Don't  kill  me  !  Oh,  Cal. 
don't  kill  me!"  Or,  "Oh,  Cal,  you'll  kill  me!" 
The  words  were  shrill,  and  dreadfully  tragic,  of 
mingled  praying,  pleading  and  entreating — enough 
to  melt  the  heart  of  adamant.     But  no  help  was  given. 

"  Let  us  see  the  river,"  was  my  first  salutation  :  and 
already  I  trembled  at  the  tragedy. 

Taking  a  little  row-boat  we  paddled  leisurely  to  the 
opposite  bank  to  the  hut  latel}' occupied  by  Cal  Water- 
man, who  worked  in  a  mill  near  by.  and  who  had  not 
yet  finished  his  breakfast.  I  had  previously  learned 
of  a  joint  insurance  on  the  life  of  Waterman  and  his 
wife,  the  murdered  woman,  and  determined  to  make 
the  most  of  it.  And  here  I  may  say  that  the  agent 
who  insured  them  was  the  means  of  my  connection 
with  the  story. 

"  Will  you  remain  here,  and  let  me  meet  him  una- 
wares? "  I  said,  as  we  neared  the  lonely  cottage. 


122  TRIAL    PRACTICE. 

Walking  .slowly  up  to  the  doorway,  I  met  :i  young 
man  of  nearly  twenty-six  years  of  age.  Strong,  well 
built,  with  black  eyes,  dark  features,  an  ugly  chin,  and 
an  arm  like  a  giant's. 

"  Good  morning,  Mr.  Waterman  ;  that  is  your  name, 
I  believe." 

Why  did  he  turn  pale  at  a  common  salutation? 

"Good  morning,"  came  back  rather  gruffly. 

"  I  live  in  Chicago,  and  have  come  to  your  city  to 
take  proofs  in  the  loss  of  your  wife  (the  insurance  I 
refer  to,")  looking  him  steadily  in  the  face,  while  his 
eyes  went  everywhere. 

"Yes,  yes,"  was  his  only  reply  in  words,  butlanguage 
is  not  all  words  ;  "any  means  by  which  one  person  com- 
municates his  ideas  to  another,"  is  a  better  definition. 

"You  had  an  insurance,  I  think,  Mr.  Waterman, 
that  in  case  either  you  or  your  wife  died  the  other  re- 
ceived the  whole  amount?  " 

"Yes,  that's  the  plan,"  said  he.  "Five  thousand 
dollars." 

"  And  you  know  we  have  to  prove  the  loss?  "  I  con- 
tinued. 

"Yes,  I  suppose  so." 

"  Well,  Mr.  Waterman,  we  are  troubled  most  at  not 
finding  the  body;  can  you  relate  to  me  some  of  the 
particulars  of  the  accident?  " 

To  him  I  treated  it  all  as  an  accident ;  this  pleased 
him,  and  I  followed  up  the  advantage. 

"  Let  us  go  over  to  where  it  happened."  Over  we 
went.     "  Now  tell  me  the  story  in  detail." 

He  started  off  in  a  rambling,  irregular  way,  but 
said  enough  to  give  me  a  key  to  the  mystery. 


BIS    FIRST    CASK.  123 

"  I  will  meet  you  at  the  office  of  Justice  Thomas  at 
two,  and  reduce  the  statement  to  writing  in  the  form 
of  an  affidavit,  which  will  complete  the  proofs,  if  you 
will  be  there,"  I  remarked,  and  he  assented. 

Seeing  the  justice,  and  summoning  all  the  witnesses 
who  heard  the  sounds,  and  knew  of  the  search  for  the 
body,  I  was  ready  at  the  hour  for  the  proofs  to  be  per- 
fected. Quite  a  little  assemblage  convened  at  the  mag- 
istrate's office  to  hear  the  news  of  the  tragedy  ;  for  a 
stranger  in  a  village  bent  on  an  errand  of  such  interest 
created  no  little  excitement. 

The  story  of  Waterman  was  short  and  sullen.  He 
had  not  worked  that  day,  and  at  about  eight  in  the 
evening  had  taken  his  wife  in  a  row-boat  for  a  ride. 
They  passed  up  some  five  times,  and  floated  down  with 
the  current  till  a  little  after  nine,  when  the  boat  struck 
a  log  in  an  eddy  and  upset  both  in  the  water.  He  had 
swam  to  the  shore,  some  four  rods  to  the  right,  and, 
hearing  the  noise,  one  of  the  neighbors  called  to  know 
what  was  the  matter,  when  he  told  him  his  wife  had 
fallen  overboard.  The  man  said,  "Where  is  she?" 
Waterman  replied,  "It's  no  use  to  look  for  her  now  ; 
it's  dark,  and  the  river  is  very  high  ;  it  will  go  down 
in  the  morning." 

"Is  that  all,  Mr.  Waterman?"  I  asked,  as  he  con- 
cluded. 

"Yes,  that's  all  I  remember." 

"You  say  you  left  home  at  eight  in  the  evening?" 
"Yes." 

"  Did  you  not  know  that  the  river  was  high,  and 
were  you  not  afraid  of  it?"  "Oh,  no,  I  am  not  afraid 
of  water." 


124  TRIAL    PRACTICE. 

"A  good  swimmer,  are  you?"     "Yes." 

"  How  far  can  you  swim?"     "A  half  mile." 

"  Can  you  dive  without  strangling?"  "Oh,  yes,  five 
times  in  succession." 

"  And  you  went  up  and  down  about  an  hour  and  a 
half,  altogether?"     "Yes." 

"And  the  eddy  is  very  near  to  the  bank  on  the  left,  is 
it  not?"     "Yes,  about  twenty  feet  off,  I  should  think." 

"And  where  you  landed  was  some  four  rods  away?" 
"  Yes,  near  that." 

"You  started  directly  for  the  shore  when  you  fell 
in,  did  you  not?"     "Yes." 

"  How  long  did  you  stand  in  one  place  on  the  shore 

before  Mr.  L came  along?"       "  About  fifteen 

minutes." 

"Your  wife  fell  out  last,  did  she?"  "No,  I  fell 
out  last,  when  the  boat  tipped  over." 

"  Did  your  wife  call  for  help?"     "  Yes." 

"  And  you  stood  on  the  bank  and  looked  on  ?"  "  No, 
I  couldn't  see  much." 

"  Could  you  see  when  you  found  the  boat,  what  was 
in  the  bottom?"  "  Yes,  a  heel  of  a  slipper  was  in  the 
bottom." 

"  Were  the  oars  shipped  in  their  places?"  "  Yes,  I 
think  they  were." 

"And  you  went  directly  home  from  there?"    "Yes." 

"And  rose  early  next  morning?"'  "No,  not  till 
half-past  seven." 

"  How  Ions;  had  you  been  married?"  "About  three 
months." 

"How  much  insurance  did  you  have?"  "Seven 
thousand  dollars." 


HIS    FIRST    CASE.  \'2~y> 

' '  All  in  one  com pany  ?"     "  Yes . ' ' 

"  And  you  are  a  good  swimmer,  and  heard  your  wife 
beg  for  God's  sake  to  save  her,  and  yet  you  left  her 
to  die,  and  left  her  in  the  water  without  alarming  the 
village,  and  went  home  and  slept  till  seven  and  after, 
and  this  is  all  you  have  to  say  in  proof  of  your  claim 
to  the  insurance?"  "No,  I  have  got  the  papers, "" 
handing  out  the  policies. 

"  That  will  do  ;  stand  down." 

The  balance  of  the  story  is  short.  AYitnesses  were 
sworn  to  show  that  none  to  good  a  feeling  existed  be- 
tween  the  newly  married  pair.  Evidence  conclusive 
was  shown  of  the  boat's  never  having  been  tipped  over 
at  all.  The  heel  of  the  slipper,  wrenched  off,  denoted 
foul  play.  The  struggle  and  screams  were  evidence  of 
more  than  collision  with  a  saw  log.  The  strong  man 
had  deserted  a  drowning  woman  only  when  she  was 
dead. 

That  was  the  belief  all  over  the  court  room  ;  else. 
why  did  he  sleep  like  a  log  when  his  wife  was  lost  in 
the  water?  Why  stand  like  a  brute  and  hear  no  appeal 
to  rescue — he,  the  swimmer,  the  diver,  the  mill  hand 
whose  life  for  years  had  made  him  accustomed  to 
water  !     Would  a  man  treat  a  dog  in  this  way? 

This  was  a  kind  of  a  little  speech  that  cropped  out 
unawares.  I  was  boiling  over  with  revenge.  But  the 
justice  looked  wise  as  he  said:  "  The  Corpus  Delicti 
has  not  been  full  enough  for  a  warrant  for  murder. 
We  must  first  find  the  body." 

Before  we  separated,  each  witness  had  signed  the 
testimony,  which  I  rolled  up  carefully,  and  started  for 
the  city. 


126  TRIAL    PRACTICE. 

I  had  killed  the  squirrel  —  my  object  was  to  defeat 
the  payment  of  the  insurance.  It  was  defeated.  But 
the  little  speech  was  too  warm  for  the  furtherance  of 
justice.  Waterman  departed,  where,  I  know  not.  The 
body  of  his  wife  was  found,  ten  days  later,  eight  or 
nine  miles  below,  with  marks  of  violence  upon  it.  The 
slipper  heel  fitted  exactly.  And  now,  as  I  look  back 
on  my  first  case,  I  can  see  with  sorrow  how  I  "killed 
the  squirrel,"  but  frightened  away  the  larger  game. 

The  result  of  the  victory  brought  business,  and 
courage,  in  the  sense  of  the  Indians'  theory,  that  the 
spirit  of  every  enemy  slain  in  battle  enters  into  our 
spirit  to  make  us  stronger  indians,  while  defeat  takes 
the  spirit  all  out  of  the  defeated." 

LIKE?    AND   DISLIKES. 

A  jury  of  twelve  men  is  usually  composed  of  one- 
fourth  to  one-half  farmers,  an  equal  one-fourth  of 
business  men,  one-fourth  of  tradesmen,  and  the  last 
quarter  men  of  "elegant  leisure."  This  is  a  city 
estimate.  In  country  courts  supervisors  prevail.  In 
United  States  court  juries  are  very  largely  from  lead- 
ing farmers  of  their  district. 

Of  the  first  class  farmers  in  general  there  is  more 
than  an  average  of  hard  common  sense  —  an  excellent 
element  on  any  jury.  No  class  of  men  believe  more 
in  even  handed  justice.  They  are  seldom  approached 
with  bribe  offers.  They  are  naturally  honest  and 
careful.  They  reckon  slowly,  but  surely.  They  are 
economical  and  tender-hearted,  and  if  they  understand 
the  rights  of  parties,  they  are  generally  sure  enough 
<ef  agreeing  on  a  correct  verdict. 


LIKES   AND    DISLIKES.  127 

The  chief  thing  in  dealing  with  farmers  is  to  be 
straightforward  and  fair  minded.  They  care  less  about 
tine  words,  and  more  of  upright  positions.  To  at- 
tempt to  be  captious,  or  tricky,  or  unjust  with  farmers, 
is  certain  to  prejudice  your  rights,  and  more  than 
likely  make  lasting  impressions. 

Farmers  that  attend  in  high  courts  are  leaders  at 
home.  They  are  proud  of  opinions.  They  form  a 
general  judgment  from  slight  circumstances.  One 
juryman  said  in  a  recent  slander  case,  Avhere  a  man 
was  charged  with  speaking  evil  of  a  woman  to  her 
husband  :  "  Well,  Avhat  of  it?  Hasn't  she  covered  up 
his  property  to  the  tune  of  $20,000,  for  a  half  dozen 
years?"  "Yes,"  said  another,  "and  I  know  him 
well.  He  is  a  great  man  to  allow  his  wife  to  sue  for 
slander  when  she  was  short  $60  on  a  church  fund  not 
long  since,  and  he  is  the  man  that  bought  five  bags  of 
wheat  of  me,  and  all  I  ever  got  was  the  empty  bags 
back.  Damages  !  Damages  to  such  a  family  !  Not 
this  year!"  Instantly  the  theme  changed,  and  six 
cents  was  the  verdict. 

This  illustrates  the  prejudice  of  farmers.  Had  it 
been  a  jury  of  tradesmen,  several  of  whom  had 
failed  in  their  own  business,  their  sympathy  would 
have  been  awakened  for  the  miller  who  fell  short  of 
payment  only  live  bags  of  wheat  to  a  farmer. 

The  mechanics  of  a  jury  panel  are  more  inclined  to 
figures  and  science  —  a  demonstration  of  the  case  by 
rules  and  exact  reasons.  Their  habits  are  not  so  tren- 
«ral  or  off-hand  as  either  merchants  or  farmers. 
Trained  to  think  through  careful  practice,  they  dissect 
things  with  skill  and  accuracy.     A  mechanic  once  con- 


128  TRIAL    PRACTICE. 

vinced  is  a  firm  and  stubborn  juror ;  especially  a 
machinist.  Their  measurement  must  be  certain,  and 
once  made  gives  great  faith  to  a  good  workman.  A 
man  that  can  build  in  separate  blocks  and  pieces  a  city 
hall  of  stone  and  iron,  or  one  who  can  construct  an 
engine,  must  have  self  confidence  in  a  large  degree. 

Then,  too,  men  about  town  who  own  property  and 
sit  upon  juries,  are  men  of  great  general  information. 
They  are  talkers.  They  tell  stories,  laugh  down  posi- 
tions opposed  to  their  theories,  and  have  such  an  air 
of  star  actors  that  they  often  over-persuade  others  less 
brilliant  in  affairs.  Talkers,  great  talkers,  men  of 
stubborn  habits,  are  dangerous,  if  once  biased  in  a 
trial,  for  either  party.  Men  picked  up  from  the  re- 
tired class  are  not  all  stubborn  ;  but  the  clever  men  are 
so  easily  selected  by  pleasant  faces,  that  little  need  be 
said  on  the  subject. 

A  single  glance  over  the  panel  will  reveal  the  hard 
men,  and  these  are  moved  only  by  reason,  logic  or 
deep  prejudice.  They  are  all  selfish,  and  show  it  in 
their  faces.  By  the  same  look  the  good  natured  will 
be  discovered,  to  whom  a  pointed  story  is  the  best 
argument.  The  steady  church  going  class,  with  high 
foreheads  and  florid  faces,  are  generally  emotional, 
and  relish  the  sayings  of  wise  men  and  eloquent  pas- 
sages. So  young  men  are  sure  to  be  influenced  by 
emotion.  Where  the  blood  is  warm,. and  free,  and 
active,  a  merciful  mind  and  tender  affections  are  easily 
kindled  ;  while  the  hard  men  despise  appeals  to 
sympathy. 

There  are  three  things  that  all  jurymen  like,  and 
three    that  they  equally  dislike.     These   are:      First,. 


LIKES    AND    DISLIKES.  129 

terseness,  clearness  of  statement  and  evidence  ;  second, 
even  handed  justice  ;    third,  all    placed    before    them 
with   an    earnest,   accurate    and    interesting    delivery. 
The  three  dislikes  are  :     First,  higgling  over  trifles  ; 
second,    petty   advantages ;   and,  third,   dullness    and 
rasping   harsh   language.      A   fourth   dislike   may  be 
added,  the  practice  called  by  jurors  "  throwing  dirt." 
This  may  not  be  elegant,  but  it  tells  the  whole  story. 
Human  nature  revolts  at  indecency  in  practice.     Some 
lawyers  esteem  it  a  high  art  to  repeat  and  intensify 
words    spoken    in  anger,  that  are  better  never  men- 
tioned again  in  like  language.     It  is  an  excuse,  per- 
haps, to  the  originator  that  he  was  angry,  but  to  one 
who  repeats   it   willingly   no    fine-minded  person    can 
excuse. 

On  a  panel  of  jurymen  will  be  found  many  noble 
men,  many  superior  reasoners,  many  hungry  hearers 
and  diligent  readers.  Feed  them,  and  not  insult  them. 
Never  explain  too  much.  Let  all  jokes  explain  them- 
selves. Leave  off  all  reasoning  at  a  ripe  point,  and 
avoid  over  argument,  but  stop  not  too  soon.  And  this 
reminds  me  that  short  and  plain  sentences  are  best  and 
most  relished  by  a  jury.  Much  as  they  like  eloquence 
or  wit,  if  the  subject  of  the  suit  is  blind  and  obscure, 
they  mark  you  as  not  a  good  lawyer. 

In  a  recent  slander  trial  the  court  charged  the  jury 
that  if  they  found  the  words  uttered  were  the  same  as 
those  charged  and  set  forth  in  plaintiff's  declaration, 
and  that  they  were  false,  and  intentionally  false,  and 
tended  to  injure,  and  had,  in  fact,  injured  the  reputa- 
tion of  plaintiff,  then  she  was  entitled  to  damages. 
"  At  least,  gentlemen,  under  such  a  state  of  facts,  you 

(9) 


130  TRIAL    PRACTICE. 

should  find  for  plaintiff  a  verdict  for  six  cents  dam- 
ages." 

What  a  charge  !  The  jury  actually  supposed  they 
were  instructed  to  find  just  six  cents,  for  the  last  end 
of  the  sentence  was  all  they  could  carry.  I  think 
they  were  told  that  they  could  add  to  the  verdict  puni- 
tory damages  if  they  believed  the  slander  was  willful. 
But  what  a  poverty  of  language  in  a  court  to  call  over 
such  an  avalanche  of  large  and  obscure  phrases  ! 

Such  a  charge  was  enough  to  kill  any  verdict.  No 
wonder  juries  disagree  under  such  instruction.  Clear- 
ness, fairness,  smoothness,  interest  and  terseness  are 
the  telling  points  in  practice. 

LETTERS  AS  WITNESSES. 

"Everyman  should  kiss  the  lips  that  giveth  the 
right  answer." 

The  fear  of  a  rigid  cross-examination  prevents  many 
persons  from  telling  the  whole  truth  to  counsel.  But 
no  fear  need  ever  follow  truth  telling  —  that  case  is 
weak  indeed  which  rests  on  falsehoods  —  if  any  are 
seeking  to  learn  tricks  in  practice,  this  is  no  work  of 
instruction. 

"  Better  a  good  name  and  loving  favor  than  silver 
and  gold." 

Witnesses  that  come  to  court  with  a  memorandum,, 
a  book  account  and  written  voucher  referred  to  in  the 
nick  of  time,  as  if  by  accident,  will  so  fortify  their  tes- 
timony that  he  becomes  a  power  in  turning  doubtful 
settlements  or  half-made  contracts.  Witnesses  never 
attach  weight  enough  to  their  own  story,  if  true,  and 
they  know  its  true.      Why  cringe  and  quail,  or  hesi- 


LETTERS    AS    WITNESSES. 


131 


tate  ?  Is  not  the  word  of  one  man  equal  to  a  thousand  ; 
if  the  circumstances  outside  of  his  testimony  are  all 
believed  by  the  thousand?  Can  a  man  deny  a  fixed 
date  like  a  holiday?  Can  a  man  deny  his  own  letters, 
and  his  book  entries?  Surely  days  and  dates  are 
notches  on  the  stick,  as  the  old-time  tally  boys  termed 
them,  that  tell  their  own  story. 

A  diary  kept  at  the  time  and  referred  to,  provided 
it  is  a  real,  genuine  article,  is  almost  certain  to  render 
a  witness  invulnerable.  Few  men  can  recall  the  events, 
payments  and  dealings  of  a  single  busy  month  in  busi- 
ness. But  most  men  could  glance  at  an  item  entered 
at  the  time,  and  turning  from  it,  swear  to  the  certainty 
that  the  item  is  true. 

Five  years  of  my  life  I  kept  a  diary.     I  have  them 

yet red,  blue,  black  and  maroon  covered — five  little 

soiled  and  blurred  books.  Some  items  in  ink,  some 
in  pencil  :  some  tell  where  I  worked,  others  where  I 
spent  money  ;  others  of  a  meagre  ineome  twenty-six 
years  ago  —  yet  all  are  true — true  as  boyhood's 
thoughts  are  sure  to  be.  I  could  take  each  book  at 
random,  turn  to  any  page,  and  soon  recall  the  year, 
and  day,  and  all  I  earned  or  spent  that  day,  ivith 
greater  certainty  than  of  any  event  or  any  day  of  a 
single  year  ago. 

Witnesses  are  aided  by  events  — helped  by  memo- 
randa, rendered  absolutely  solid  by  letters  from  the 
party  to  be  charged.  Of  all  the  witnesses  on  earth, 
letter  witnesses,  well  used,  are  the  most  believed  and 
convincing.  They  come  with  the  sanctity  of  coolness. 
They  are  like  promissory  notes  and  Bible  records  — 
hard  to  dispute  from  their  sacredness  and  solemnity. 


132  *  TRIAL    PRACTICE. 


CHAPTER   XIV. 


JUSTICE  CASES. 


Early  mention  has  been  made  of  Dickinson's  start 
in  practice  as  a  barefooted  lawyer  in  a  bar-room  jus- 
tice court  trial,  and  Waite's  integrity  in  the  Maumee 
Valley  in  similar  cases  ;  #of  Shaffer's  battle  with  Van 
Arman,  of  Seward's  country  cases  near  Auburn,  and  a 
volume  more  might  be  written  of  Lincoln's  luck  in 
pioneer  practice.  But  the  purpose  of  this  item  is  to 
illustrate  the  turn  of  justice  cases. 

Justice  court  practice  is  never  to  be  despised  by  one 
who  would  know  the  law  in  all  its  different  phases. 
In  fact,  it  is  generally  believed  that  more  real  work  is 
given  to  the  square  inch  in  this  division  of  trial  prac- 
tice than  even  the  Supreme  Court  cases.  The  sums 
involved  are,  of  course,  limited  to  one  or  three  hundred 
dollars,  and  yet  justice  cases  constitute  about  one-half 
in  number  of  any  county's  court  business,  either  by 
original  or  appeal  cases.  Their  number  is  very  con- 
siderable, and  of  much  interest  to  the  community. 

The  law  has  wisely  simplified  the  pleadings,  and 
almost  all  declarations  are  oral,  with  ample  room  for 
an  amendment.  Should  one  assume  to  file  written 
declarations  he  will  be  held   to  greater  certainty,  and 


JUSTICE    CASES,  133 


therefore  thev  are  not  in  common  use  with  western 
courts  and  lawyers.  With  issue  joined  but  few  cases 
•ire  won  for  defendant  without  a  jury,  and  the  strug- 
gle at  once  becomes  interesting.  There  are  two 
methods  of  procedure  open  to  the  advocate  —  one  to 
try  his  case  fully  with  a  jury,  and  the  other  to  rely  on 
an  appeal.  If  there  is  a  sure  defense,  the  jury 
method  is  safest. 

But  suppose  it  is  a  disputed  building  bill  — a  case 
where  defendant's  set-off  exceeds  plaintiff's  demand? 
Then,  by  all  means,  sue  separately,  and  let  each  party 
litigate  his  own  action  in  his  own  way.     If  A.  has  a 
clahn  of  $50,  and  B.  $200,  the  chances  of  recovery  be- 
yond the  $50  would  be  better  in  a  separate  action.    To 
illustrate  :  Baer  &  Son  sued  Backus  for  their  commis- 
sion in  selling  a  lot  for  $1,150,  and  recovered  $25,  which 
was  duly  appealed.     Then  Backus  sued  Baer  for  breach 
of  a  contract  to   sell  him  the  lot  for  $950,  the  stipu- 
lated price,  and  after  giving  in  evidence  the  contracts 
on  the   letter-head  of  Baer  &  Son,  signed  by  the  firm 
name,  dated  six  months  previous,  and  showing  he  was 
compelled  to   purchase   at  an  advance  of  $200  without 
the  aid  of  Baer  &   Son,  recovered  $200.      This  case 
was  appealed,  and  by  chance  both    came  on  for  trial 
by  jury  at  same  day  in  the  circuit. 

So  far,  it  was  clear  that  if  they  either  had  a  cause  of 
action  it  was  better  to  separate  them.  So  it  further 
appears  the  larger  case  is  called  first.  The  contract 
and  some  evidence  offered  to  make  a  prima  facie  case, 
is  put  before  the  jury,  when  suddenly  the  defendants 
denv  their  partnership,  and  insist  that  the  elder  Baer 
is  relieved  by  absence  from  the  State  at  the  date  of  the 


134  TRIAL    PRACTICE. 

written  memoranda,  and  even  when  the  commission 
suit  was  brought  never  knew  of  it,  and  was  not  bound 
by  it,  having  dissolved  with  the  son  six  months  before. 

Ingenuous  as  this  appears,  it  was  met  by  a  seven- 
fold answer:  (1)  that  for  four  years  defendants  had 
been  partners,  and  never  gave  notice  of  dissolution  ; 
(2)  that  they  had  leased  their  office  as  partners,  and 
the  young  man  had  remained  in  it ;  (3)  they  used  the 
same  signs  and  letter-heads;  (4)  they  sued  as  part- 
ners ;  (5)  they  appealed  the  cross-suit  as  such  ;  ((5) 
the  young  man  swore  to  partnership  in  presence  of 
three  witnesses;  (7)  he  signed  the  firm  name,  and 
continued  to,  for  a  year  after  the  alleged  dissolution. 
It  was  then  urged  that  in  seven  ways  they  left  them- 
selves held  out  as  partners  ;  in  short,  it  was  forgery  in 
signing  papers,  perjury  in  swearing  to  it,  or  jwt11^1'- 
ship  in  having  authority  to  act  for  the  firm  within  the 
scope  of  the  partnership.  Judgment  passed  for  $200, 
and  the  smaller  suit  was  discontinued,  the  real  merits 
reached  by  separate  suits. 

I  have  chosen  this  case  as  instructive,  and  will  add 
one  more  to  enforce  the  lesson  :  A.  and  G.  were  part- 
ners, settled  up  and  dissolved  before  the  war.  After 
the  war  G.  became  tenant  of  A.,  and  suit  was  brought 
for  rent,  which  resulted  in  its  collection — some  $200. 
G.  was  very  angry,  and  sued  out  before  a  German 
justice,  who  allowed  G.  to  read  his  bill  of  particulars 
in  evidence,  to  the  great  disgust  of  defendant's  coun- 
sel. Judgment  passed  for  $217.  The  case  was  re- 
manded by  certiorari,  and  affirmed  !  there  having  been 
no  evidence  shown  for  A,  and  the  justice's  return  was 
carefullv  drawn  to  match  all  assumed  errors. 


WESTERN    JUSTICE.  135 

A.  was  greatly  annoyed,  and  in  danger  of  losing  a 
snug  sum  unlawfully.  His  counsel  sued  the  other  side 
of  the  account,  $228,  and  applied  to  the  Appellate 
■Court  to  stay  proceedings,  in  a  strong  showing  of  A.'s 
ability  to  pay,  if  he  justly  ought  to,  and  G.'s  inability. 
The  stay  was  granted.  The  last  suit  resulted  in  an  in- 
teresting trial.  The  old  books  had  been  pasted  full  of 
soldier  pictures  and  ballads  nearly  covering  the  items  of 
partnership  settlements,  but  finally  showed  the  last 
balance.  The  jury  found  for  A.  $228,  and  thus  re- 
lieved him  of  a  double  payment  by  determined  efforts 
of  counsel. 

I  think  the  foregoing  incidents  known  to  have  hap- 
pened, together  with  the  humorous  experience  in  the 
next  item,  will  explain  and  enforce  the  lesson  that 
there  is  some  art  in  justice  practice,  and  he  who  would 
win  his  case  must  not  forget  that  great  men  like  Se- 
ward and  Waite  were  never  ashamed  of  their  victories 
in  the  lower  courts  —  the  poor  man's  hope  for 
justice. 

WESTERN   JUSTICE.  *      . 

In  1881  a  wealthy  farmer  named  Broeksmit,  with 
liis  son  William,  a  youth  of  eighteen,  went  to  New 
Mexico  from  Cedar  Rapids,  Iowa,  to  engage  in  cattle 
farming.  A  well  stocked  ranch  of  300  acres  was  pur- 
chased near  Sante  Fe,  and  the  father  subsequently  re- 
turned to  Iowa,  leaving  William  in  charge.  William 
was  educated,  refined  and  intelligent,  and  soon  became 
very  popular   in  society,  attending  balls  and  socials, 

*  Case  before  referred  to,  but  not  sufficiently  to  illustrate  the  fine  work 
fully. 


13()  TRIAL    PRACTICE. 

dressed  in  the  height  of  fashion,  was  exceedingly  pre- 
possessing in  appearance,  and  a  universal  favorite  in 
the  region  for  miles  around. 

Early  in  January,  1882,  he  was  found  dead  in  the 
doorway  of  his  house,  with  three  bullet  holes  in  his 
head,  the  indications  pointing  to  a  brutal  murder.  A 
reward  of  $500  was  offered  for  the  arrest  of  the  mur- 
derer, and  three  weeks  later  Damoin  Romero  was  ar- 
rested, with  $(30  in  cash,  a  sealskin  cap  and  a  horse 
blanket  belonging  to  young  Broeksmit  in  his  posses- 
sion. Romero  was  a  former  friend  of  Broeksmit' s,, 
and  one  year  older ;  rather  fine  looking,  of  good  fam- 
ily, and  excellent  character. 

The  two  lived  together  and  were  very  intimate,  at- 
tended the  same  balls,  exchanged  clothing — or  rather 
William  often  lent  Romero  his  clothes  to  appear  well  at 
parties,  mainly  to  improve  his  friend's  appearance. and 
increase  his  chances  in  winning  a  fair  Spanish  maiden 
whom  Romero  went  with,  and  who  was  also  attached  to 
a  half-breed  Indian,  a  strong  rival  of  Romero.  Broek- 
smit was  murdered  on  Wednesday,  and  his  body  was  dis- 
covered on  Sunday  evening  by  Mr.  Shaffer,  the  former 
owner  of  the  ranch,  with  whom  both  he  and  Romero^ 
boarded.  Broeksmit  had  evidentlv  been  standing  in 
the  front  doorway,  as  indicated  by  fresh  blood  stains 
on  the  carpet  just  inside  the  door,  but  the  body  was 
dragged  inside  and  left  till  discovered. 

Suspicion  was  not  alone  confined  to  Romero,  whose 
possession  of  property  belonging  to  William  was  a 
matter  quite  general  in  their  daily  business.  He  often 
wore  William's  clothing,  and  was  more  like  a  brother 
than  a  possible  murderer.     He  had  no  bad  habits  such 


WESTERN    JUSTICE.  137' 

as  drinking,  swearing  or  quarreling,  was  harmless  in 
appearance,  with  nothing  to  indicate  a  nature  so  de- 
based as  the  crime  seemed  to  require.  He  was  below 
medium  height,  slender,  jet  black  hair,  clear  black 
eyes  that  looked  steadily  at  one,  and  had  a  large,  broad 
forehead.  There  was  no  apparent  motive  for  him  to 
commit  such  a  crime,  and  he  had  never  quarreled  with 
Broeksmit  as  far  as  was  known. 

Romero's  story  which  he  told  at  the  trial  sounds 
plausible,  and  an  extract  is  herewith  given  :  "I  am  inno- 
cent of  the  murder.  Broeksmit  was  killed  by  an  Indian 
by  the  name  of  Rael,  who  was  taken  from  the  Coman- 
ches,  and  raised  by  a  Mexican  family.  I  was  in  the  yard 
milking  the  cows,  and  this  Indian  and  William  were  out 
in  front  of  the  house  shooting  at  a  mark.  I  went  through 
the  kitchen  with  the  milk,  and  the  Indian  said,  '  Now 
you  want  to  go  with  me.'  I  asked  why?  He  said, 
•  You  will  have  to.'  I  asked  him  again,  and  he  said. 
'You  have  killed  the  man,'  pointing  to  William.  I 
was  so  frightened  I  dropped  the  milk  pail  on  the  floor, 
walked  out  with  him  and  found  '  Silver  Tail'  and  the 
Indian's  horse  tied  to  a  wagon.  We  untied  them,  and 
walked  down  for  a  mile.  Then  the  Indian  took  a  lot 
of  money  out  and  gave  me  $G0.  I  think  William  had 
nearly  $300  when  the  Indian  killed  him.  The  night 
before  the  killing,  the  Indian  came,  and  William  was 
asleep.  He  knocked,  and  wanted  to  stay  all  night. 
William  awoke  audsaid,  '  let  him  in,'  which  I  did,  and 
he  slept  by  the  fire,  and  next  morning  went  away.  He 
came  back  at  night.  I  went  after  the  cows,  and  when 
I  returned  Broeksmit  and  the  Indian  were  shooting  at 
a  mark.     After  the  Indian  killed  William  he  took  the 


138  TRIAL    PRACTICE. 

money,  except  $9  in  silver.  I  was  so  frightened  when 
I  found  he  was  dead  that  I  did  not  know  what  to  do. 
I  liked  him.  I  was  teaching  him  Spanish,  and  he 
teaching  me  English,  so  each  could  talk  plainer  to  the 
other.  He  often  lent  me  his  clothes  to  visit  Senorita 
Padilla.     The  Indian  was  jealous  of  me." 

Justice  Dacey  released  the   Indian,  who  proved  by 
three  Mexicans  that  he  was  seen  several  miles  away  at 
the  time  of  the  killing.     (Time  not  being  very  defi- 
nitely fixed,  seems  to  render  his  alibi  none  too  sub- 
stantial.)    There  are  grave  doubts  now  about  the  gen- 
uineness of  the  Indian's  alibi.     He  has  recently  mar- 
ried the  fair  Senorita  Padilla,  and  indications  point  to 
his  possessing  considerable  wealth  at  present,  a  condi- 
tion heretofore  unknown  of  him.     Romero  was  tried, 
convicted   and   sentenced   to   be  hanged  February  2, 
1883.     His  case  was  appealed,  but  the  sentence  was 
confirmed.     His    mother   and    sisters   visited    him    in 
prison,  kissed   his  hands,   cheeks  and  eyes  most  ten- 
derly.   Never  could  a  parting  scene  on  any  stage  equal 
their  emotion.     He  bore  up  bravely,  and  to  each  told 
the    same    story  of  his    innocence.     To    the    Catholic 
Father  Corsini  he  firmly  denied  all  guilt.     He  slept 
-soundly,  took  his  meals  regularly,  and  never  showed 
tiny  sign   of  changing  his  statement.     No   man    ever 
faced  the  gallow  more  bravely.     Even  in  the  touching- 
scene  with  his  little  sisters  he  was  brave  and  tender, 
and  as  the  mother  and  children  took  their  last  embrace, 
the  picture  of  one  going  to  -death  and  disgrace  for 
another's  crime,  if  his  story  is  to  be  believed,  was  a 
sad,  sad  ending  of  a  young  man's  friendship  ;  for  Ro- 
mero loved  Broeksmit  as  few  men  ever  love  each  other. 


WESTERN   JUSTICE.  139 

Seeing  there  was  another  with  a  double  motive  — 
the  Indian,  who  goes  unwhipped  of  justice,  I  am  con- 
vinced that  Romero  was  incapable  of  the  brutal  act, 
lacked  a  motive,  and  should  have  been  held  to  await 
results  or  acquitted. 

It  only  illustrates  the  anxiety  of  a  people  to  get  a 
speed}'  revenge. 

The  danger  of  capital  punishment,  when  certainty 
of  guilt  is  lacking,  and  how  circumstances  may  em- 
barrass one  and  lead  to  appearances  of  guilt.  "No 
man  becomes  suddenly  vile,"  is  one  of  the  old,  old 
Roman  maxims,  believed  for  ages,  and  seems  to  have 
been  forgotten  in  Romero's  defense,  else  overcome  by 
the  prosecution  and  outside  pressure. 

From  the  description  of  the  prisoner,  his  habits, 
life,  looks,  relatives  and  story  of  the  murder,  he 
should  have  been  held  as  a  witness  to  convict  the  In- 
dian, the  real  guilty  party,  by  all  means.  Remember, 
I  do  not  favor  loose  criminal  laws.  Punishment  should 
be  certain,  that  societv  may  be  safe.  If  it  appeared 
that  he  knew  of  the  murder,  which  he  must  have 
known,  it  was  his  duty  to  speak  out,  and  not  conceal 
it.  But  the  more  was  required.  He  lacked  hardness 
of  heart,  intent,  the  essence  of  all  crimes  ;  may  have 
been  ignorant  of  the  law  that  compels  one  to  expose 
high  crimes  and  return  stolen  property.  Many  people 
have  been  careless  and  concealed  crimes  that  were  not 
guilty  of  the  act.  The  hanging  law  should  never  do 
worse  than  the  prisoner.  In  Romero's  case  it  was 
worse  than  a  "  life  for  a  life."  The  Indian's  treach- 
ery and  jealousy  did  that  deed,  and  the  Indiana  law, 
leaving  it  to  the  jury  to  say  " hanging  or  imprison- 


140  TRIAL    PRACTICE. 

ment,"  would  correct  the  danger  of  hanging  the  inno- 
cent. 

It  required  no  great  gift  to  win  such  a  suit.  A  full 
opening  statement  well  followed  by  circumstances, 
admitting  all  but  the  killing,  would  have  insured  victory. 

A  NEW  YORK  JUSTICE  STORY. 

Judge  C tells  a  good  story  of  a  young  Irish  jus- 
tice in  New  York,  whose  qualifications  for  the  office 
were  well  suited  to  his  class  of  customers,  being  as 
ignorant  of  law  as  he  was  well  versed  in  prize  fights 
and  prison  discipline.  It  happened  that  the  judge  had 
a  client  sued  before  the  new  justice,  as  indorser  to  a 
$160  note,  secured  by  the  clearest  kind  of  fraud.  The 
judge  was  loth  to  take  the  case,  and  expressing  many 
doubts  of  his  likelihood  of  winning,  walked  down  to 
the  crowded  little  court  room  with  his  German  client 
to  meet  the  Hibernian  plaintiff  before  his  honor.  The 
note  was  offered,  and  examination  commenced,  when 
the  judge  began  to  question  as  to  fraud  in  its  execution. 
He  was  cut  short  by  his  honor,  who  refused  to  hear 
any  argument. 

"  But,  your  honor,"  said  the  judge,  "  let  me  read 
you  the  statute  of  our  State,  with  which  your  honor  is 
familiar  as  the  settled  law  of  New  York." 

"  I  don't  want  to  hear  any  statute  lah  !  "  said  the 
court  indignantly.  I'll  try  this  case  on  the  rights  of 
it,  lah  or  no  lah  !  " 

"But,  your  honor,"  said -the  judge,  "  let  me  read 
you  a  decision  of  our  Court  of  Appeals.  The  words- 
seem  made  for  this  case." 


A    NEW    YORK    JUSTICE    STORY.  141 

"And  how  cud  thot  he,"  interrupted  the  court, 
•"  when  this  case  had  not  been  tried  at  oil  yet?  "  (Ap- 
plause in  the  court  room).  The  court  looked  pleased 
•at  his  last  victory. 

"  But  one  word,  and  I  am  done,  your  honor,"  said 
the  judge.  "  I  see  your  honor  is  no  novice  in  law.  I 
have  heard  or  your  honor's  learning  in  the  popular  run 
in  the  campaign  just  over  in  which  your  honor  dis- 
tanced all  competition .  ( Applause ) .  I  know  something 
of  your  honor's  skill  as  a  marksman,  and  coming  from 
the  wealthy  and  educated  classes  of  Ireland,  your 
honor  must  have  read  thoroughly  the  British  law  which 
is  similar  to  our  own — " 

"  I  want  nothing  of  your  British  lah,"  interrupted 
the  bewildered  court. 

"But  I  had  not  completed  my  sentence,"  con- 
tinued the  judge.  "  I  was  about  to  carry  your  honor 
back  to  your  early  college  days,  and  give  you  that 
Latin  quotation  from  the  Roman  law  that  your  honor 
surely  remembers."  (Here  the  judge  recited  a  few 
sentences  of  Cicero,  while  the  court  looked  wise. )  "I 
would  not  cite  this  law  to  every  court,  much  less  to 
courts  of  this  nature,  but  I  well  know  to  whom  I  am 
talking,  and  could  as  well  be  understood  and  appre- 
ciated by  a  man  of  your  honor's  rare  learning  as  by 
the  highest  court  in  our  Empire  State  —  a  seat  upon 
whose  bench  I  hope  your  honor  may  yet  adorn." 

"  Repate  that  lah  agin,"  said  the  court.  It  was  re- 
peated. The  court  drew  himself  up  with  great  dignity, 
.and  said  : 

"  I  was  agin  ye  on  the  statute  lah,  ye  mind  ;  I  was 
agin  ye  on  the  Appeals  lah  ;  I  was  strong  agin  ye  on  the 


142  TRIAL    PRACTICE. 

British  lah  —  I  want  no  British  lah  ;  but,  do  ye  mind, 
I'm  wid  ye  on  the  Roman  lah.  (Turning  to  plaintiff.) 
Go  way  wid  yer  note  and  burn  it,  it  was  made  by 
fraud." 

Strange  to  say,  his  honor  became  noted  as  a  learned 
judge,  and  respected  as  one  who  was  wise  in  the  law. 

CIRCUIT    PRACTICE. 

Circuit  Court  cases  are,  in  the  main,  of  about  live 
kinds:  (1.)  Appeals  from  Probate  and  Commissioners 
or  Justice  Courts.  The  most  important  of  these  are 
contested  will  cases.  As  the  question  of  competency 
to  make  a  will,  or  undue  influence  in  its  executoin,  are 
matters  of  fact  for  a  jury  to  determine,  and  evidence 
may  be  given  of  it  by  lay  witnesses,  as  well  as  profes- 
sional experts,  the  chief  issue  is  :  who  can  show  the 
clearest  proof,  and  who  best  present  it  in  this  branch 
of  practice.  And  it  is  well  to  say  in  passing  that  in 
the  trial  of  circuit  cases  about  twenty  questions  of  fact 
will  arise  to  one  question  of  law,  and  the  one  who  best 
masters  his  facts  will  generally  win   on    the  merits. 

Courts  all  like  to  reach  the  core  of  a  controversy,  and 
will  do  so  if  they  can  at  the  earliest  instance.  It  will 
then  be  assumed  that  early  on  receiving  a  case  into  his 
office,  every  good  lawyer  will  set  down  in  black  and 
white  the  points  relied  upon,  the  witnesses,  the  address 
of  each,  and  what  is  to  be  shown  by  them.  Judge 
Curtis  goes  a  step  further,  and  has  their  testimony 
written  out,  and  signed,  and  sworn  to,  if  need  be,  for 
a  greater  certainty. 

Assuming  these  precautions  are  observed  —  and  all 
of  them,  save  the  last,  should  be  rigidly  adhered  to  — 


CIRCUIT   PRACTICE.  143 

the  next  step  is  equal  attention  to  the  law  of  the  case, 
in  its  order  to  be  posted.  What  a  decision  holds  to  be 
the  law  of  a  given  subject,  if  ready  and  in  reach,  may 
be  the  turning  point  of  the  issue. 

A  simple  list  of  witnesses,  without  knowing  what 
can  be  proved  by  them,  is  only  a  half  brief  on  any 
question.  It  must  be  like  writing — as  intelligent  to 
another  as  to  its  author.  Who  knows  who  will  try 
the  issue?  Who  knows  but  sickness,  absence  or  acci- 
dent may  throw  it  in  the  hands  of  an  utter  stranger? 
Then  bear  in  mind  this  important  item  :  "Be  ye  also 
ready,"  in  fact,  and  law,  and  evidence. 

Names  of  witnesses'  residence,  and  their  evidence  : 
names  of  authority  where  found,  and  its  essence,  taken 
down  early  in  every  case,  filed  with  the  case,  or  writ- 
ten on  the  file  cover  inside,  will  pay  a  thousand-fold 
for  time  consumed.  It  will  prevent  confusion  when 
the  case  comes  suddenly  for  trial,  often  without  a  mo- 
ment's warning. 

Read  Ten  Trial  Rules  often,  and  see  the  necessity  of 
visiting  the  scene  of  the  circumstance.  There  are  little 
things  that  form  a  background  to  cases  that  set  out 
the  picture  with  far  greater  clearness  ;  and  if  I  repeat 
this  word  often  it  is  intentional,  for  no  word  equals  it 
in  any  case.  Clearness  of  fact,  clearness  of  law, 
clearness  of  statement,  clearness  of  argument,  and 
clearness  of  the  issue  can  never  be  over-estimated. 
It  must  not  be  tedious.  Good  lawyers  know  by 
intuition  when  to  stop  proving,  and  reading,  and 
speaking. 

The  issue  in  a  will  case  is  not  what  ought  to  have 
been  done,  but  whether  what  was  done  was  the  testa- 


144  TRIAL    PRACTICE. 

tor's  will,  unclouded  by  incompetency,  and  uninflu- 
enced by  interested  heirs  and  advisers. 

The  issue  in  a  civil  damage  case  is,  "  where  one  of 
two  innocent  parties  must  suffer  a  loss  from  the  care- 
lessness of  a  third  person,  the  parly  zvho  enabled  the 
loss  to  occur  must  bear  it."  This  is  a  general  rule  in 
torts  and  accident  cases,  where  by  careless  driving,  or 
imperfect  bridges  and  machinery,  some  one  was  in- 
jured, the  guilty  should  bear  the  loss. 

He  who  continued  to  use  a  defective  boiler,  know- 
ing it  to  be  so,  was  forced  to  pay  damages.  He 
who  allowed  a  rotten  clothes  reel  to  stand  in  his 
yard  was  forced  by  a  new  tenant  (to  whom  all  things 
were  warranted  to  be  set  in  good  order),  recently  to  pay 
for  an  injury  from  the  falling  reel.  He  who  enabled  the 
loss  to  occur  had  to  bear  it. 

Very  much  depends  on  tact  in  railroad  accident  cases 
that  are  liable  to  require  skill  in  management.  The  run- 
ner who  was  badly  injured  by  falling  out  of  a  car  door,  as 
a  train  suddenly  halted  at  the  Grand  Trunk  Junction,  re- 
covered a  heavy  verdict  through  the  adroitness  of  Ben. 
Butler,  who  insisted  that  the  man  was  inside  the  door, 
and  not  at  all  guilty  of  negligence.  And  although  the 
victim  moaned  aloud,  "I'm  to  blame  !  I'm  to  blame  ! 
If  I'd  kept  inside,  this  never  would  have  happened  !  " 
Even  this  was  called  delirium!  and  a  pathetic  appeal 
made  by  repeating  it  at  the  very  opening  of  the  argu- 
ment. Taking  the  "bull  by  the  horns"  and  disarming 
the  enemy. 

This  leads  to  the  great  question  of  contributory  neg- 
ligence, that  the  best  of  counsel  must  guard  well  to 
avoid   showing.       There    is  no    recovery   where   it   is 


CIRCUIT    PRACTICE.  145 

shown,  and  it  is  vital  to  the  issue.  Still  courts  allow 
the  jury  to  say,  for  it  is  their  province,  who  was  the 
guilty  party  in  the  line  of  negligence. 

If  there  is  any  conflict  —  even  a  scintilla  of  evidence 
that  gives  the  case  to  a  jury  to  decide,  narrow  as  a 
wire  though  the  facts  in  dispute  may  be,  a  jury  will 
construe  them  as  equity  dictates.  The  evidence  will 
furnish  the  foundation,  the  law  will  apply  it  to 
principles,  but  the  jury  will  judge  the  merits  of  the 
injury,  and  fix  the  blame  of  it  on  him  who  should 
bear  it. 

The  issue  in  accounts  or  debts,  or  business  paper, 
depends  -<>  much  on  the  candor  of  witnesses,  that 
thoroughness  is  the  only  true  motto  to  prepare  by. 

So  with  the  trials  of  -lander  and  libel  cases,  that  fill 
so  many  day-  of  city  court  business,  they  turn  on  the 
foundation  facts  from  which  they  arose.  -Much  will  i 
on  candor  ;  much  on  character,  and  not  very  much  on 
unknown  law  of  libel.  These  are  sensational  or 
paper  cases,  that  consume  time  and  pay  poorly. 

Under  breach  of  contracts  of  various  kinds,  consid- 
erable money  i-  yearly  recovered.  It  is  not  only  right 
but  righteous  to  compel  men  to  live  up  to  their  con- 
tracts, and  counsel  who  appear  for  plaintiff  have  an 
easy  road  to  enforce  such  matter-  as  right  and  equity 
should  enforce  in  a  court  of  justice. 

The  trial  of  grain  gambling  cases,  collisions,  en- 
dorsements, sureties  on  bond-,  and  land  contracts, 
with  occasional  breach  of  promise  and  malpractice 
cases,  will  till  a  good  space  on  every  circuit  docket, 
but  the  rules  governing  each  are  best  explained  in 
special  works  on  the  subject. 

(10) 


146  TRIAL    PRACTICE. 

It  is  enough  to  know  that  the  law  of  a  trial  is  like  other 
trials,  but  the  facts  of  every  trial  may  vary,  and  are  likely 
to  differ  materially.  That  is  why  a  brief  of  facts  and 
law  is  essential.  That  is  why  evidence  must  be  stud- 
ied, and  witnesses  made  to  reveal  the  truth  without 
concealment,  and  with  candor  and  circumstances. 

There  will  arise  arson  cases,  right  of  way  cases, 
corporation  contracts  and  paving  matters,  lines  to  de- 
termine, titles  to  establish,  estates  to  settle,  and  elec- 
tion contests. 

Mysterious  are  the  ways  of  men  in  business  !  They 
often  spend  a  hundred  dollars  to  settle  a  quarter  hun- 
dred dispute.  But  the  true  lawyer  need  not  advise 
bad  law  suits.  The  true  rule  is  the  case  early  men- 
tioned in  this  volume  of  Chief  Justice  Waite's  career  : 
To  find  the  real  merits  in  the  office,  regardless  of  what 
■clients  want  them  to  be,  and  advise  accordingly,  al- 
lowing no  client  to  be  judge  in  your  own  office,  but 
make  that  office  and  your  judgment  the  Supreme 
Court  of  all  cases  before  any  burden  is  brought  on 
^clients  unwisely. 


CRIMINAL  COURT  CASES.  147 


CHAPTER  XV 


CRIMINAL  COURT  CASES. 


TWO    STRANGE    DEFENSES. 


Larceny,  burglary,  arson,  assault  with  intent  to  kill, 
robbery,  forgery,  embezzlement  and  murder,  are  the 
chief  offenses  tried  in  criminal  courts.  The  first  is  so 
common  that  the  proof  of  property  and  the  taking 
requires  but  a  few  moments,  and  generally  results  in  a 
speedy  determination.  The  works  on  criminal  prac- 
tice treat  extensively  of  the  essentials  to  be  shown,  and 
hint  at  the  defenses.  The  felonious  taking  of  another's 
goods  is  always  confined  to  the  depraved,  and  charac- 
ter is  one  of  the  best  defenses  for  the  early  offenders  ; 
failure  of  identity,  with  steady  employment  and  lack 
of  motive,  go  a  great  way  to  disprove  it,  and  few  good 
men  or  women  suffer  under  this  charge,  if  properly 
defended.  That  the  police  should  single  out  one,  it 
is  not  always  conclusive  of  guilty  knowledge  or  inten- 
tion. 

Burglary,  a  crime  next  to  murder,  will  also  bear  the 
marks  of  a  hardened  nature.  Burglars  are  either 
caught  near  the  act,  in  the  act,  or  with  marks  of  the 


148  TRIAL    PRACTICE. 

crime  upon  their  persons.  Character  should  be  of 
weight,  for  no  good  man  would  ever  become  so  de- 
praved, and  instances  must  be  rare  of  this  crime  being 
committed  by  early  offenders.  As  the  Almighty  never 
mistakes  in  putting  up  a  human  face,  so  a  jury  should  be 
able  to  judge  some  by  appearances,  and  counsel  with  a 
real  burglar  to  defend,  has  his  hands  full  in  preparing. 
Arson  may  be  different.  Too  many  over  insurances 
are  collected  by  men  who  burn  buildings  with  mercen- 
ary intent,  and  never  dream  of  the  dreadful  conse- 
quences. Rich  men,  or  comparatively  well  off,  have 
committed  arson  and  embezzlement.  Indeed,  so  com- 
mon has  become  the  latter  offense,  that  few  can  not 
remember  some  one  well  up  in  society  who  defaulted 
and  condoned  it,  or  left  for  a  neighboring  nation.  I 
recall  an  instance  successfully  defended,  where  one 
worked  twenty-one  months  traveling  for  a  tobacco 
house,  and  was  short  $2,200,  who  changed  the  books 
to  conceal  it,  failed  to  report  as  collected,  worked  at 
$600  a  year  and  expenses,  hoping  to  have  an  increase 
in  July  and  again  in  January,  whose  wife  had  been 
told  that  he  was  an  excellent  salesman,  and  should  be 
rewarded  ;  that  it  mattered  less  what  His  expenses  were 
if  sales  were  in  proportion.  Well,  January  came,  and 
no  increase.  The  salesman  made  a  statement,  slipped 
it  under  the  store  door,  and  fled  to  Canada.  It  clearly 
showed  the  embezzlement.  He  wrote  to  the  house  to 
meet  him,  and  he  would  settle.  He  was  told  by  one 
of  the  firm  to  come  back  and  work  it  out,  and  con- 
sented. Once  in  the  States  he  was  arrested.  Covered 
all  over  with  guilt,  to  all  appearances,  how  can  one  so- 
guilty  be  defended  ? 


CRIMINAL  COURT  CASES.  149 

Lawyers  do  get  such   cases.      Let  us  see  : 

"  How  did  this  shortage  arise?  "  ''By  advertising, 
•and  treating,  and  spending  too  much  for  the  house." 

"  Why  did  you  conceal  it?  "  "To  retain  my  posi- 
tion," he  answers. 

"  Did  you  not  fear  detection?  "  "  No,  I  was  pay- 
ing up  old  debts  with  new  collections,  like  a  retail  mer- 
chant buying  on  credit." 

"  Did  they  know  of  your  high  expenses?  "  "  Yes, 
they  threatened  me  once,  and  wanted  to  limit  it  to  $4 
a  day.  They  turned  me  off  partly,  and  my  wife  inter- 
ceded." 

"Ah,  she  knew  of  it?  "     "  Yes,  all  about  it." 

One  witness  and  two  circumstances  may  not  show  an 
intent  after  all. 

So,  with  these  facts  before  the  jury,  a  good  charac- 
ter, an  excellent  wife — a  fine  witness — a  splendid  and 
full  statement,  all  consistent  as  stated  ;  a  memoran- 
dum book  with  thirty  paid  up  and  crossed  off  embez- 
zled items,  it  was  urged  to  the  jury  : 

That  there  was  no  intent,  the  essence  of  the  offense 
established — 2:01112:  to  Canada  was  not  embezzlement. 

The  statement  was  not  of  itself  an  offense.  The 
memorandum  showed,  if  anything  —  anxiety  to  pay. 
The  wife's  statement  showed  he  had  hope  of  high 
wages.  He  was  holding  on,  and  hoping  to  pay  all 
and  be  even. 

The  time  for  a  raise  was  a  time  of  disaster.  He  was 
overtaken  by  a  storm,  and  hung  on  the  life-boat  of 
one  reason  which  should  clear  him  ;  anxiety  to  main- 
lain  It  is  little  liome,  and  increase  the  firm's  business. 
Not  for  finery,  or  fine  houses,  or  horses,  but  on  a  lim- 


150 


TRIAL    PRACTICE. 


ited  salary,  night  and  day,  he  roamed  the  States  to 
build  up  a  revenue  for  his  cigar  firm.  Going  through 
400  saloons  at  their  bidding,  treating,  as  directed  "not 
to  be  too  stingy,"  who  knows  but  the  firm  had  received 
its  value?  Who  knows  but  for  twenty  years  their 
revenue  would  be  increased  by  the  expenditure,  had 
he  not,  after  all,  exceeded  his  authority,  and  used  too 
much  of  that  money  out  of  which  he  had  permission  to 
pay  expenses  and  his  paltry  salary? 

Sure  enough,  this  line  of  thought  cleared  him. 
The  very  best  defense  in  forgery  cases,  is  implied 
authority  to  sign.  That  is,  if  through  some  dealing,, 
it  can  be  implied.  The  next  best  is  not  guilty  and 
good  character.  This  is  not  a  case  of  alibi  defense. 
It  must  be  boldly  met,  and  mastered  in  the  office  first, 
then  in  the  court  room.  And  in  this  connection,  it 
may  be  said  all  cases  should  be  first  won  in  the  office,, 
then  in  the  court  room.  It  is  the  only  safe  rule,  the 
only  reliance  to  reach  a  victory. 

The- defense  of  murder  and  manslaughter  cases, 
judged  by  results,  is  more  often  successful  than  almost 
any  other.  I  remember  many  an  instance,  where  on 
first  reading  of  a  brutal  homicide,  it  seemed  sure  con- 
viction to  the  perpetrator,  and  as  surely  ended  in  an 
acquittal.  Of  course  there  were  circumstances  of  an 
outraged  home,  or  a  quarrel,  a  plea  of  self-defense,  or 
an  immediate  cause  that  gave  room  for  doubt,  that 
before  seemed  a  certainty. 

Take  the  Barnard-Curtis  homicide  of  Lapeer.  The 
accused  was  supposed  to  be  in  love  with  a  seventy  year 
old  minister,  more  adoration  than  love  about  it.  She 
was  fair,  rich,  and  under  forty.     But  such  was  her 


CRIMINAL  COURT  CASES.  151 

desire  to  attend  his  service,  that  she  followed  him  from 
place  to  plaCe  to  attend  his  meetings.  He  seems  to 
have  been  annoyed,  and  his  wife  also,  by  her  atten- 
tions. It  is  mid-winter  in  Lapeer.  An  evening  ser- 
vice has  commenced.  The  snow  is  deep  ;  the  village 
houses  dimly  lighted.  Mrs.  Barnard  enters  church 
late.  Her  face  is  marked  and  scratched  ;  her  hair  dis- 
arranged, and  she  is  in  a  deep  blush  of  confusion.  A 
few  moments  more  and  messengers  arrive  to  call  Elder 
Curtis  to  the  house,  there  to  mid  his  wife  burned  to 
a  blister  nearly  all  over  the  body.  Her  long  gray  hair 
burned  off  her  head  ;  her  face  blackened  ;  her  arms 
charred  ;  her  body  in  a  horrible  condition,  and  she  in 
dreadful  agony.  A  notary  takes  her  dying  declara- 
tion. It  is,  in  effect,  that  she  was  reading  by  the 
stand  by  lamplight,  and  was  not  able  to  attend  evening 
service.  That  Mrs.  Barnard  called,  and  threw  a  stand- 
cloth  over  her,  poured  oil  all  over  it  —  during  which 
Mrs.  Curtis  clawed  and  scratched  and  contended  with 
her  murderer.  That  the  hot  flames  soon  smothered 
her.  But  she  was  sure  Sarah  Barnard  had  tried  to  kill 
her. 

Mrs.  Barnard's  whereabouts  were  traced.  She 
claimed  to  have  been  lost  on  the  way  to  church,  but 
not  to  have  been  near  Mrs.  Curtis.  Her  face  marks 
and  deranged  hair  were  said  to  come  from  a  fall  ;  she 
slipped  down  on  the  way,  and  was  excited  from  being 
lost.  This  was  her  story.  The  poor  victim  died  sud- 
denly, proclaiming  in  dying  breath,  Mrs.  Barnard  has 
killed  me  ! 

This  seems  a  clearly  made  out  murder  case.  Let  us 
see.     Rich   people  employ  counsel.     Judges  grant  a 


152  TRIAL    PRACTICE. 

change  of  venue.  Experts,  under  the  artful  manage- 
ment of  J.  B.  Moore,  of  Lapeer,  and  Cf.  V.  N.  Lo- 
throp,  of  Detroit,  explain  that  of  thirteen  exploded 
lamps,  eleven  broke,  looked  and  appeared  like  the 
Curtis  lamp  left  burning  on  the  stand  that  evening. 
It  was  an  explosion  they  say,  and  a  confusion.  But 
what  of  the  scratches  on  Mrs.  Barnard?  Oh,  as  she 
says,  marks  of  a  fall  on  the  crust,  and  confusion  from 
losing  her  way  in  a  strange  village.  But  what  of  the 
dying  words  of  Mrs.  Curtis?  That  is  accounted  for, 
says  Dr.  Pratt,  by  a  vivid  dream,  so  common  to  old 
people.  She  was,  doubtless,  very  jealous,  doubtless 
knew  of  Mrs.  Barnard's  being  in  Lapeer,  fell  asleep, 
dreamed,  half  awake  suddenly  clutched  the  stand 
cloth,  jarred  the  lamp  ;  it  exploded  and  set  her  on  fire, 
and,  in  the  confusion,  it  seemed  to  her  that  her  enemy 
had  been  there  in  reality.  Two  arguments  on  this 
theory  led  a  jury  to  say  not  guilty.  But  they  may 
have  been  mistaken. 

If  there  is  one  lesson  clear  in  this  chapter,  it  seems 
to  be  that  in  all  criminal  cases  nothing  is  impossible  to 
one  who  has  fertility  of  resources,  adroitness  and  tact 
to  apply  them,  and  eloquence  enough  to  enforce  the 
theory  successfully.  Remember,  every  case  must  have 
a  theory ;  every  defense  must  seem  reasonable,  and 
every  lawyer  must  be  ingenious  to  be  lucky  in  criminal 
practice. 

GIVE  A  LITTLE. 

I  have  watched  the  progress  of  great  advocates 
when  trifles  arose  like  clogs  in  their  pathway  ;  how 
they  yielded,  and  gave  way  some  trifling  thing  to  get 


GIVE    A    LITTLE.  153 

a  better  one,  and  never  noticed   a   strong  man  to  be 
very  captious  over  minor  matters. 

If  a  man  has  merit  in  his  action  he  can  not  afford 
to  smother  it  with  husks  and  shavings,  or  obscure  it 
with  the  dust  of  petty  differences.  When  one  is  hunt- 
ing for  deer  he  can  pass  by  quails  and  pheasants,  in 
the  hope  of  better  game  with  the  same  ammunition. 
But  many  a  lawyer  >pends  his  force  on  everything 
alike,  in  one  long  dead  monotony  :  as  if  he  mast  win 
every  point  or  stand  defeated. 

Racers  are  never  so  silly.  They  lose  a  score  often 
for  interest,  or  gain  their  end  at  the  home  stretch 
amid  applause  and  surprise  together. 

I  have  seen  a  lawyer  spend  a  half-hour  of  his  speech 
in  abusing  witnesses  that  a  hint  of  his  mistaken  story 
would  have  reconciled  with  reason.  It  is  far  better  to 
give  way  a  little,  and  gain  by  it,  than  to  adhere  too 
closely  and  divide  a  jury  on  trifles.  The  truth  is,  in 
many  cases  parties  testify  with  doubtful  intensity,  and 
counsel  should  be  guarded  not  to  allow  his  client's  be- 
lief to  form  the  foundation  of  his  demand.  Belief  is 
one  thing,  evidence  quite  another  thing.  Often  we 
believe  fraud  has  been  committed  in  assignment  and 
chattel  mortgage  cases  ;  seldom  are  we  able  to  show  it 
by  evidence,  sworn  to  from  actual  knowledge. 

Suspicions  are  common  in  belief,  but  are  never  evi- 
dence, and  they  are  the  usual  foundation  on  which 
fraud  cases  are  based  and  prosecuted. 

Facts  that  cannot  be  proven  should  be  dropped. 
Matters  of  no  bearing  should  be  treated  accordingly. 
Cases  are  not  won  in  abuse  of  counsel,  or  abuse  of 
witnesses,  or  often  one.'//'  ,.■>>  positions.     The  average 


154  TRIAL    PRACTICE. 

mind  prefers  some  sense  and  reason  in  argument.. 
To  reach  a  jury  one  need  not  be  too  very  certain 
of  every  point,  and  thereby  lose  all,  if  anything. 
Far  better  to  give  a  little  ;  to  go  a  step  in  the  direc- 
tion of  an  adversary,  and  he  may  go  so  far  in  re- 
turn. 

After  every  case  some  things  will  come  to  light 
which  met  in  the  true  spirit  of  manliness  earlier,  may 
have  saved  hundreds  in  expenses,  and  may  have  settled 
the  whole  matter. 

I  was  never  more  touched  by  the  sense  of  fairness 
then  in  listening  to  Judge  V.,  in  Leavenworth,  at  the 
hearing  of  a  divorce  case  where  both  parties  had  shown 
far  too  much  bitterness.  After  hearing  all  patiently, 
the  judge  remarked  : 

"  Have  you  always  lived  this  way?  "  •<  No,  sir," 
said  the  wife  mildly,  "  only  since  he  neglected  me  for 
other  women." 

"  Did  you  not  love  this  man  when  you  married 
him?"  "Certainly.  I  would  love  him  yet,  if  he 
used  me  decently." 

"Come  nearer,  sir,"  said  the  court,  addressing  the  de- 
fendant, "  How  long  has  this  trouble  lasted?  "  "  Only 
for  a  year  or  so,  your  honor." 

"Did  you  not  love  this  woman  when  you  married 
her?"     "Yes,  your  honor."  ' 

By  this  time  both  were  in  tears,  and  the  court 
added  :  "I  am  afraid  you  have  been 'magnifying  your 
differences.  I  advise  you  to  make  up  at  once.  If 
you  will,  I'll  help  you." 

"  So,  you  think  (turning  to  the  wife),  that  you 
could  live  happily  together?  "       "  Yes,  your  honor." 


COURAGE    IN    COURT.  155 

A  few  more  words,  and  man  and  wife  went  out  arm 
in  arm  from  the  effect  of  a  little  touch  of  nature  in  the 
court's  kind  words.  Had  lawyers  always  done  as 
much,  many  quarrels  could  have  been  peaceably 
settled. 

COURAGE  IX   COURT. 

True  courage  is  not  boastful.  Determined  men  are 
silent  and  full  of  deeds,  with  few  words.  To  threaten, 
is  to  betray  weakness.  Real  strength  is  better  shown 
in  deeds  —  something  done,  something  executed. 
"Report  what  has  happened,  and  never  talk  of  what 
is  likely  to  happen,"  was  a  rule  of  the  Tribune  under 
Greeley's  management.  Simple  courage  can  be  shown 
by  even  refusing  to  quarrel,  or  even  show  anger  over 
little  matters,  and  reserving  one's  strength  for  better 
uses.  "  If  I  only  had  courage,"  said  a  student,  "  but 
when  I  stand  up  in  court,  I  tremble."  Then  go  where 
you  are  afraid  to  go,  and  go  there  oft<  n. 

Courage  comes  in  three  ways,  first,  by  confidence  in 
your  positions,  second,  by  thorough  familiarity  with 
law  and  evidence  to  sustain  them,  and  last,  by  fre- 
quent experiences  in  like  matters.  Swimmers  learn 
and  gain  by  practice;  singers  by  drill,  and  speakers 
by  similar  means  in  a  like  manner. 

"When  I  first  walked  down  the  aisle  of  a  great 
church,"  said  a  leader  of  society,  "I  felt  that  if  I 
could  fall  through  the  floor,  it  would  be  a  relief  to  me  ; 
now  I  never  think  of  it,  and  I  made  up  my  mind,"  he 
continued,  "  that  I  would  go  till  I  overcome  my  bash- 
fulness." 


156  TRIAL   PRACTICE. 

There  is  little  more  needed  than  an  aptness,  a  will, 
-courage  and  frequent  trials  to  ripen  one  in  practice. 
Learning  early  is  the  right  course.  Neither  too  for- 
ward nor  too  slow,  but  with  a  resolute  stand  to  keep 
in  line,  and  not  be  beaten  out  of  one's  course  by  his 
own  fault,  is  the  true  resolution.  There  is  no  reason 
why  one  lawyer  should  yield  all  rights  to  another. 
There  is  no  rule  why  one  with  right  on  his  side  ( which 
is  always  a  majority),  should  quail  before  a  multitude. 
If  he  does  so,  he  does  it  at  his  peril,  and  will  find 
himself  weakening,  where  he  should  be  gaining  cour- 
age and  clientage.  Clients  like  to  be  well  represented. 
They  hate  to  be  talked  out  of  court,  or  bluffed  out  of 
a  verdict  by  lack  of  proper  resentment  of  counsel. 
If  a  lawyer  is  defeated  after  a  hard  fight  and  an  artful 
and  courageous  action,  he  loses  little  by  defeat,  and 
gains  much  by  his  adroitness  ;  but  a  heartless  and  half 
heedless  defense,  is  never  respected  even  by  an  adver- 
sary. Every  lawyer  must  make  his  rank  by  deserving 
acts  of  practice  that  shows  his  worthiness.  Counsel 
are  timed  like  racers  —  they  are  judged  by  their  rec- 
ord. Too  many  losses,  too  many  petty  quarrels,  too 
many  little  acts  of  inefficiency,  even  one  such  act,  en- 
dangers the  confidence  in  ability,  and  prevents  promo- 
tion. 

Soldiers  are  promoted  for  valor,  citizens  are  eleva- 
ted for  their  uprightness  and  ability,  with  a  reasonable 
art  of  showing  it,  and  lawyers  are  not  sought  out  in 
dingy  back  offices,  dressed  and  surrounded  by  negli- 
gence, unless  they  have  mental  courage  and  caliber  to 
win  court  victories.  Why  is  the  rare  painting  singled 
•out  from  the  others,  except  for  some  bold  outlines  and 


a  soldier's  verdict.  157 

striking  features  that  others  have  failed  to  equal.  He 
that  would  win,  must  pay  the  price  of  advancement  — 
courage,  patience,  clearness  and  a  will  to  hold  on  faith- 
fully to  the  end. 

A  SOLDIER'S  VERDICT. 

Col.  Charles  Spencer,  of  Brooklyn,  tells  of  his  ex- 
perience with  the  late  Edwin  James,  in  a  soldier's 
claim  for  $1,800,  money  loaned  to  a  friend  after  the 
war,  and  in  the  story  is  a  rare  point  of  practice  —  a 
hint  on  cross-examination,  which  the  Brooklyn  Eagh 
gives  as  follow-  : 

Deft  mid  nt's  counsel,  Mr.  James: — "You  loaned 
him  $1,800?"     »  I  did  sir." 

"When,  sir?"     "In  1866." 

"  Where  did  you  get  it?  "  "I  earned  it,  sir,"  he 
replied,  meekly. 

"  "When  did  you  earn  it  ?  '"  "  During  the  war,  sir,'' 
(meekly). 

"What  was  your  occupation  during  the  war?" 
"  Fighting,  sir,"  (modestly). 

Up  to  this  time  the  case  had  been  doubtful,  but  the 
preponderance  of  evidence  was  easily  seen  for  the  sol- 
dier. 

Col.  Spencer  went  to  the  jury  with  great  force  on 
the  career  of  the  soldier  :  "  Who  guarded  our  liberties,, 
helped  to  save  one  nation  for  one  people,  risked  his 
life,"  etc.,  and  grew  touchingly  eloquent,  and  gained 
a  full  verdict. 

"That  war  speech  did  it,"  said  attorney  James,  "and 
you  discovered  it  all  through  my  cross-examination." 


158  TRIAL    PRACTICE. 

"Yes,"  said  Spencer,"  and  you  failed  to  discern 
that  my  client  was  a  Confederate  soldier  !  or  you  could 
have  changed  the  verdict." 

It  don't  need  a  double  four-horse  team  to  draw  a 
sure  conclusion  as  to  the  effect  of  this  cross-examina- 
tion, and  the  shrewd  replies  of  Spencer's  client,  who, 
with  his  counsel,  knew  where  to  stop, —  the  key  to 
many  a  signal  victory. 

WHEN  TO  STOP. 

Aaron  Burr  and  Abraham  Lincoln  both  knew  when 
to  stop  talking  to  a  jury.  Burr  spoke  generally  only 
thirty  minutes  ;  Mr.  Lincoln's  best  efforts  were  deliv- 
ered in  about  twenty  minutes.  Patrick  Henry  was  of 
the  same  terse  style  of  speakers,  and  Tom  Marshall 
not  far  behind  in  sharply  cut  sentences.  These  men 
all  knew  when  to  stop. 

Horace  Greeley,  Wilber  F.  Story  and  Whitelaw 
Eeid,  are  of  this  happy  style  of  writers  whose  words 
end  up  a  period  with  a  ring  and  tingle  to  be  remem- 
bered. Spurgeon,  Collier  and  Buckley  have  a  share 
in  the  gift  of  brevity,  but  few  ministers,  and  fewer 
lawyers,  begin  to  know  the  right  ending  to  an  argu- 
ment. 

Many  lack  insight.  Some  lack  confidence,  and 
others  prove  on  beyond  the  merits,  and  attempt  to 
prove  their  side,  then  disprove  the  other  side  for 
greater  certainty.  They  generally  create  uncertainty. 
No  amount  of  instruction  can  teach  what  should  come 
by  intuition.  If  an  advocate  can't  take  the  hint  by 
the  eyes  of  his  jury,  he  will  not  be  likely  to  profit  by 


WHEN   TO    STOP.  159 

a  law  lecture.  The  fact  is,  this  work  is  less  intended 
for  instruction,  and  more  for  suggestions  and  exam- 
ples of  good  practice  drawn  from  the  efforts  of  many 
counsel. 

It  will  be  noticed  by  a  speaker  of  any  note,  that  he 
states  interestingly,  argues  logically,  and  closes  with 
warmth  and  energy.  The  clear,  deliberate  start,  the 
forcible  and  determined  body,  and  eloquent  ending  of 
an  address,  pleases  most  people  best ;  and  when  to 
stop,  is  instantly  after  the  three  things  named  are  ac- 
complished. It  is  not  necessary  to  play  a  repeat  ten 
or  twelve  times  to  be  impressive.  The  music  of  a 
band  or  an  opera  is  not  looked  for  in  a  court  room 
argument.  "I  could  listen  to  that  man  all  night," 
said  a  hearer  of  Wendell  Phillips  ;  but  will  he  not  be 
all  the  better  listener  again  by  irettim;  a  little  less  than 
the  full  measure  ? 

Lawyers  who  expect  to  increase  their  business,  will 
have  time  enough  for  practice  in  speaking ;  but  to 
practice  on  an  audience,  or  more  especially  on  a  poor 
patient  jury,  is  a  sad  error  in  judgment. 

As  in  the  story  of  Col.  Spencer's  soldier  verdict,  a 
broad  hint  is  given  on  over  trying  cases  or  too  much 
cross-examination,  so  the  rule  applies  to  too  many 
witnesses.  Two  of  a  kind,  six  on  character,  and  a 
kind  of  men  to  be  believed,  is  better  than  a  cloud  of 
unreliables.  Quit  with  a  victory  ;  begin  and  end  with 
good  evidence  ;  chink  in  with  medium  one's  if  they  are 
needed,  but  never  depend  on  counting  witnesses  to 
secure  a  preponderance  of  evidence.  It  shows  a  weak- 
ness to  tell  a  story  over  too  often  ;  even  a  good  telling 
dulls  the  pith  of  it.     Some  one  will  vary  and  change 


160  TRIAL    PRACTICE. 

the  shading,  till  it  falls  short  of  interest  and  loses  its 
corners.  The  round  cornered  periods  and  sentences 
never  take  like  a  vigorous,  sharp  ending. 

Think,  for  a  moment,  of  the  vast  crowd  of  poor 
speakers  that  tire  a  court  and  weary  a  jury  with  end- 
less speeches,  burying  their  evidence  under  words, 
covering  their  points  three  deep  under  periods  of  great 
length  and  great  transparency.  While  one  should 
guard  against  stopping  one  second  short  of  saying  the 
right  thing,  and  always  proving  his  own  case  com- 
pletely by  his  own  witnesses,  he  cannot  be  too  careful 
to  end  his  evidence  and  close  his  argument  with  a 
climax  that  is  telling  and  convincing.  There  is  no 
rule  so  safe  in  testimony  and  argument,  as  to  quit  with 
a  victory. 

REMEMBER    LITTLE    THINGS. 

It  is  well  to  remember  not  only  that  kindness  begets 
kindness,  but  that  "vainly  is  the  net  set  in  sight  of  the 
bird  ;"  so  that  kindness  must  be  a  growth  of  our  being, 
an  every  day  practice.  Chief  Justice  Waite  never 
passed  an  old  acquaintance,  juryman,  witness,  or  party 
to  a  case,  without  a  cordial  recognition.  His  nature 
was  one  long  day  of  even  dealing,  and  considerate  de- 
portment to  others,  high  and  low  alike. 

A  friend  says  of  Matt  Carpenter  :  "  I  was  with  him 
in  an  important  ship  canal  case,  when  hundreds  of 
thousands  depended  on  the  issue.  He  had  turned 
away  caller  after  caller  of  distinguished  senators  and 
visitors  ;  he  had  declined  all  company,  when  the  secre- 
tary announced,  '  Air.  Carpenter,  the  little  colored  girl 


REMEMBER    LITTLE    THINGS.  161 

waits  to  see  you.'  Instantly  the  pen  dropped,  and  the 
senator  had  her  come  in,  and  said  in  a  kind  voice, 
'  well  Liza,  did  you  get  the  place?'  '  No,  Massa  Car- 
penter ;  that  place  was  all  full.'  It  was  to  be  janitress 
of  a  committee  room;  the  senator  added,  'wait  a 
moment,  and  I'll  go  with  you,  Liza ;'  and  out  into  the 
evening  to  the  committee  room,  went  the  great  supreme 
court  lawyer,  and  soon  secured  the  situation,  saying: 
♦  these  men  callers  can  come  again,  but  it  would  break 
the  little  girl's  heart  to  turn  her  away  rudely.'  The 
next  day  he  won  the  canal  case,  but  the  joy  at  finding 
a  place  for  little  Liza  was  as  great  to  the  advocate  as 
his  greater  victory." 

The  incident  touched  me  ;  act*  like  these  give  all 
orators  a  better  hearing  before  a  jury  ;  it  is  not  enough 
to  be  great  once,  true  greatness  is  always  great. 

I  was  in  a  United  States  court,  when  a  distinguished 
counsel  returned  from  a  long  trip  to  Europe.  His 
return  to  the  bar  was  cordially  greeted  ;  first  he  paid 
his  respects  to  the  court,  and  then  turning  towards  the 
bar  he  met  the  old  janitor  on  his  way  with  an  ice 
pitcher,  whom  he  greeted  with  equal  politeness,  and  so 
on  through  the  bar,  but  nothing  marked  the  gentleman 
more  than  the  natural  ease  with  which  he  remembered 
the  colored  janitor. 

In  most  cases  lawyers  have  to  win  the  respect 
of  parties  and  witnesses,  and  when  one  gets  the 
name  of  sharpness,  he  draws  that  much  less  from 
his  witness,  and  is  that  much  more  discounted  by  the 
jury.  As  "modulation  is  the  music  of  oratory,"  so 
tact  is  the  weapon  of  an  examiner.  Men  of  fairness, 
men  of   candor  and  reputation  are  not  long  in  getting 

(11) 


162  TRIAL    PRACTICE. 

the  facts  of  a  controversy  in  issue  ;  therefore,  it  is  all 
essential  to  be  manly,  to  overcome  the  dread  of  testify- 
ing, to  lead  a  witness  to  truth  telling  in  natural  lan- 
guage. 

To  gain  the  confidence  of  everyone,  and  deserve 
it,  requires  a  life  of  uprightness.  To  such  a  lawyer, 
half  of  his  cases  are  easy  victories.  His  words 
are  weighty.  Suppose  such  a  man  asks  a  witness, 
"  may  you  not  be  a  little  mistaken?"  the  answer  will 
be,  "Yes,  possibly."  "May  not  the  plaintiff  have 
been  just  a  little  to  blame?"  "  Yes,  he  may  have." 
"And  you  may  be  just  a  little  prejudiced?"  "  Yes." 
"  May  he  not  have  spoken  harshly?"  "  Yes."  "  May 
he  not  have  looked  just  a  little  angry,  or  disappointed  ; 
or  attempted  to  show  his  manhood  ;  then  his  courage  ; 
then  his  anger  ;  then  he  did  brace  up?"  "  Yes,  sir." 
"Just  as  you  or  any  brave  man  would  do,  did  he?" 
"  Yes,  sir."  "  And  was  ready  to  strike  (or  shoot)  if 
forced  to?"  "  Yes,  of  course  he  was."  After  these 
yeses  begin  to  be  repeated,  the  judge  would  get  "yes" 
to  matters  of  importance.  If  one  can  listen  a  few 
days  to  the  average  run  of  court  arguments,  he  will 
soon  see  how  poor  and  awkward,  how  dull  and  monot- 
onous most  of  them  sound  to  outsiders.  It  is  the  prov- 
ince of  counsel  to  present  facts  in  a  winning  way,  and 
in  language  persuasive.  If  he  sang  in  a  choir,  he  would 
practice  ;  if  he  lectured,  he  would  write  and  commit 
every  paragraph  :  if  he  dreamed  of  fame  as  a  painter, 
he  would  study  fine  art  dilligently  ;  and  this  is  but  one 
man's  opinion,  but  firmly  believed  in,  that  any  advocate 
can  be  greatly  aided  by  a  thorough  study  of  fine 
speeches,   arts,  and  samples  of  rare  work  by  others, 


REMEMBER   LITTLE   THINGS.  163 

and  one  that  also  believes  many  cases  have  been  won 
by  pleasant  and  pungent  arguments,  where  the  facts 
pointed  to  the  other  side  without  this  rarest  of  all  gifts, 
•earnest  eloquence. 

"  He  that  is  wise,  is  wise  for  himself,"  is  a  saying 
that  ought  to  be  framed,  and  hung  up  in  every  law 
office  in  the  land.  If  he  is  wise  for  himself,  he  will 
neglect  not  to  secure  prompt  settlements,  and  thereby 
lasting  friendship  with  clients.  That  man  who  owes 
his  counsel  an  X,  or  double  eagle,  or  half  hundred, 
some  amount  too  small  to  be  sued  for,  will  go  else- 
where, and  pay  his  money  so  long  as  the  debt  case  can 
slide  along  uncancelled  ;  and  more  clients  change  law- 
yers for  lack  of  prompt  settlements  than  any  other  cause, 
but  the  losing  of  eases.  Of  course  lack  of  success 
always  leads  to  change  of  counsel.  But  a  lawyer  is  to 
blame  who  has  failed  to  tell  the  real  prospects  of  suc- 
cess and  failure  at  the  beginning;  he  that  is  wise  will 
take  a  long  look  ahead,  and  provide  a  permanent  life 
work  by  reasonable  charges,  honest  advice  and  sturdy 
integrity.  These  all  make  friends,  and  friends  make 
practice. 

I  have  heard  attorneys  say,  "  All  the  business  I  ever 
got  came  first  from  strangers  ;  my  friends  never  helped 
me  any."  Poor  fellow,  he  had  never  "grappled  any 
friend  to  him  with  hooks  of  steel,"  or  his  story  would 
be  different.  "  He  that  would  have  friends,  must  show 
himself  friendly,"  is  too  true  to  need  one  word  of 
■comment.  The  wisdom  of  the  ages  by  the  wit  of  one, 
Jieed  never  be  distrusted.  •'  Better  a  good  name  and 
loving  favor,  than  great  riches,  makes  another  of  the 
rare  rules  of  law  practice."      One  who  would   have 


164  TRIAL   PRACTICE. 

"  reason  impelled  by  passion,  sustained  by  learning,  and! 
adored  by  fancy,"  should  gather  maxims  and  rules, 
and  commit  passages  until  his  mind  becomes  a  fountain 
of  fine  thoughts  and  rare  sayings,  that  come  like  an 
authority,  for  quotations  always  sound  like  author- 
ities. 


ORDER    OF    TRIALS.  165 


CHAPTER  XVI. 


ORDER   OF   TRIAL-. 


The  first  step  after  a  counsel  is  retained,  as  attorney 
•of  record,  is  to  determine  how  the  parties  will  bring 
on  the  matter  for  trial  or  hearing.  In  the  States 
where  a  code  practice  prevails,  with  but  two  actions, 
■ex  delicto  and  ex  contractu,  to  entitle  the  cause  on  legal 
paper,  set  up  the  facts  fully,  and  have  plaintiff  swear 
to  them  is  all.  This  important  act  should  be  carefully 
done  ;  at  least,  a  pencil  draft  to  be  made  by  a  com- 
petent lawyer.  This,  with  answer  or  demurrer,  forms 
an  issue. 

In  common  law  practice  States  suits  are  begun  by 
attachment,  declaration,  capias,  replevin  and  sum- 
mons, which  are  generally  on  printed  forms  and  easily 
tilled,  except  the  first  which  requires  the  greatest  care. 
Attention  to  details  in  either  form  will  prevent  confu- 
sion, and  often  a  non-suit  or  demurrer,  that  greatly 
annoys  a  beginner  in  practice.  Indeed,  an  experienced 
counsel  of  fixed  reputation  is  injured  by  defeat  on  pre- 
liminary questions,  and  beginners  are  sorely  mortified 
and  recover  slowly  from  early  falls  of  this  nature. 

The  things  most  to  be  noted  are  :  Names  of  parties. 
There  is  no  excuse  for  not  knowing  the  full  name  of  a 


16(3  TRIAL    PRACTICE. 

plaintiff,  and  yet  a  $7,000  verdict  was  recently  ob- 
tained, and  that,  too,  after  a  lengthy  trial,  without 
noticing  the  error.  An  amendment  cured  the  misno- 
mer. 

It  may  be  well  here  to  state  that,  under  the  now 
universally  broad  and  liberal  rules  of  amendment,  the 
court  has  power,  at  any  time  before  judgment,  to 
amend  any  process,  pleading  or  proceeding  for  the  fur- 
therance of  justice. 

As  little  is  gained  by  dilatory  pleas  that  at  most, 
lead  merely  to  better  pleadings,  no  time  need  be  given 
here  to  that  branch  of  unpopular  practice.  Suffice  it 
to  say,  that  sooner  or  later  cases  must  come  to  trial  on 
their  merits,  and  the  sooner  so  reached  the  better  :  ex- 
cept where  one  defends  in  criminal  cases  with  a  bitter 
prejudice,  and  then  time  is  a  feature  to  adhere  to. 

Suppose  then  a  general  issue,  or  not  guilty,  is 
pleaded,  and  the  day  is  set  for  trial,  are  you  ready? 
Let  us  see:  Have  you  read  your  jury  list?  If  not, 
some  may  be  clients  of  your  learned  brother,  others 
may  belong  by  kindred  or  special  relationship.  This 
study  of  the  panel  is  a  rare  point  in  practice.  Two 
bad  jurors  may  destroy  the  best  argument.  I  know 
of  one  who  raised  a  verdict  many  thousand  dollars  in 
a  railroad  condemnation  case.  Too  much  stress  can- 
not be  laid  on  a  wise  selection  of  a  jury  ;  not  in  the 
sense  to  get  biased  men  in  your  favor,  but  fair,  even 
handed,  upright  men.  A  verdict  of  twelve  good  men 
should  satisfy  almost  any  reasonable  client. 

With  a  jury  sworn,  are  you  ready?  Well,  you  must 
be.  But  if  some  thorough  work  has  been  neglected 
in    securing   competent    testimony    and    attending   to 


ORDER    OF    TRIALS.  167 

bringing  witnesses  into  court,  you  are  still  lacking. 
These  details  of  practice  can  no  more  be  neglected 
than  colors  in  painting.  The  very  best  lawyers  are 
most  thorough  in  details.  Judge  Curtis  is  a  master 
of  this  branch.  Spending  three  months  in  the  Buford 
case  to  prepare  his  facts  and  authorities,  very  much  of 
the  time  with  witnesses  and  people  of  the  county,  he 
knew  the  testimony  by  heart  before  an  expert  was 
sworn.  This  case  was  unusual,  but  is  a  reward  for  a 
lifetime.  Like  Patrick  Henry's  Parsons  Case,  it  is 
immortal.  So  terse  and  touching  is  the  address,  that 
two  friends  read  it  alternately  for  twenty  miles  riding  in 
a  buggy  to  each  other.  It  was  born  of  great  labor.  All 
great  efforts  in  court  are  born  of  intense  labor.  Van 
Dyke's  speech  in  the  Conspiracy  Case,  required  weeks 
in  process  of  preparing.  So,  too,  was  Seward's  pow- 
erful appeal  in  the  same  contest,  and  Van  Arman  put 
the  power  of  his  young  ambition  for  a  half  }7ear  in  the 
same  trial,  and  it  made  him  a  leader  with  western 
lawyers. 

But  I  had  not  finished  with  the  order  of  trials.  All 
the  eloquence,  and  art  and  personal  skill  avail  little 
without  evidence!  Evidence  is  the  great  cellar  wall, 
corner  stone,  bodv  and  arch  of  all  cases.  Argument 
is  the  keystone,  only  you  must  have  the  arch  to  fit  it. 
Therefore  besides  the  first  step  — selecting  a  good  case 
to  go  to  court  with  ;  the  second  step,  getting  it  well  at 
issue  ;  the  third  step,  choosing  a  good  jury  ;  the  fourth 
step,  having  your  facts  well  sustained  by  evidence,  or 
the  fifth  step,  having  formed  and  mastered  your  the- 
ory, you  are  reasonably  certain,  if  your  heart  is  in  your 
case,  of  a  good  argument.      True   earnestness  scorns 


168  TRIAL    PRACTICE. 

all  rules  of  rhetoric  or  logic.  It  speaks  right  on,  like 
Mark  Anthony,  and  will  "put  a  tongue  in  every  wound 
of  Caesar,"  to  stir  a  jury  up  to  duty.  Study  the'  arts 
of  trial  lawyers,  like  the  painter  studies  his  colors. 
Combine  them,  as  he  does,  in  harmony.  Use  them, 
as  Anthony  did,  to  attract,  please,  convince,  excite  and 
sway  an  audience  to  the  side  of  right  and  justice. 

A  STEANGE   SUCCESS. 

During  the  early  part  of  the  war,  in  one  of  the  Five 
Point  regions  of  New  York,  a  young  Irish  boy  was 
arrested  for  larceny,  tried,  convicted,  sent  to  Ran- 
dall's Island  Reformatory.  While  there,  his  bright- 
ness attracted  the  superintendent's  attention,  and  he 
was  apprenticed  to  a  New  Jersey  farmer  until  of  age 
and  removed  from  confinement. 

In  his  new  capacity  he  soon  became  useful,  and 
gathered  up  his  little  savings.  He  called  often  on  his 
poverty-stricken  mother  and  sister,  and  soon  gained  a 
place  for  the  latter,  and  a  better  home  for  the  former. 
It  was  conditioned  in  his  articles  that  he  should  receive 
four  months  schooling  each  year,  two  suits  of  clothes 
and  $100  when  of  age,  and  he  was  permitted  to  do 
little  odd  jobs  besides. 

At  eighteen  he  showed  such  a  proficiency  in  scholar- 
ship as  to  desire  to  be  a  teacher,  and  bought  his  time 
of  the  farmer  for  the  $100  and  the  extra  clothing,  and 
engaged  as  a  district  school  teacher,  meanwhile  contin- 
uing to  help  his  mother  and  -sister,  whom  he  removed 
from  New  York  to  Elizabethtown,  New  Jersey. 

He  succeeded  well  as  a  teacher,  and  studied  law  at 
odd    hours  ;    was    admitted  when    of   age,   and    com- 


SHORT    SAYIXGS.  169 

menced  practice  with  great  earnestness.  Succeeding 
beyond  his  expectations,  at  the  age  of  twenty-eight  he 
had  a  practice  worth  four  thousand  a-year,  when  the 
Governor  of  the  State  appointed  him  District  Judge  at 
$2,000  salary,  an  office  which  requires  less  than  half  of 
his  attention,  so  that  he  still  continues  practice,  and  is 
counsel  for  a  railroad  company,  with  fair  prospects  of 
future  promotion,  many  believing  he  will  yet  be  Gov- 
ernor of  New  Jersey  ! 

Through  all  his  prosperity  he  has  never  attempted 
to  conceal  his  origin,  but  often  in  his  eloquent  ad- 
dresses will  crop  out  some  pathetic  allusion  to  his  early 
life  that  makes  him  none  the  less  respected  for  the 
burdens  he  has  borne. 

Is  there  any  parallel  picture  in  history?  Starting 
from  the  lowest,  fresh  from  the  doors  of  crime, 
struggling  over  the  double  obstacles  of  character  and 
poverty,  he  has  conquered  adversity  by  his  own  un- 
aided efforts,  and  stands  as  a  brilliant  light  of  the  New 
Jersey  bar,  and  an  honored  advocate. 

SHORT  SAYINGS. 

From  Bible  and  best  authors,  Shakespeare  and  my 
scrap  book : 

Unstable  as  water,  thou  shalt  not  excel. 

Quit  yourselves  like  men. 

Let  him  that  girdeth  on  his  harness  boast  not  as  he 
that  putteth  it  off. 

All  that  a  man  hath  will  he  give  for  his  life. 

A  word  spoken  in  due  season  how  good  is  it? 

A  word  fitly  spoken  is  like  apples  of  gold  in  pictures 
of  silver. 


170  TRIAL   PRACTICE. 

Faithful  are  wounds  of  a  friend,  but  the  kisses  of 
an  enemy  are  deceitful. 

Iron  sharpeneth  iron,  so  a  man  sharpeneth  the 
countenance  of  his  friend. 

The  race  is  not  to  the  swift,  nor  the  battle  to  the 
strong,  but  time  and  chance  happeneth  to  them  all. 

Love  is  strong  as  death. 

Jealousy  is  cruel  as  the  grave. 

To  give  unto  them  beauty  for  ashes.  The  oil  of 
joy  for  mourning  ;  the  garment  of  praise  for  the  spirit 
of  heaviness. 

Consider  the  lilies  of  the  field  how  they  grow  ;  they 
toil  not,  neither  do  they  spin. 

Out  of  the  abundance  of  the  heart  the  mouth  speak- 
eth. 

The  law  is  good,  if  a  man  use  it  lawfully. 

The  love  of  money  is  the  root  of  all  evil. 

*  *  *  #  *  * 

Speech  was  given  to  man  to  disguise  his  thoughts. 

The  greatest  happiuess  for  the  greatest  number  is 
the  foundation  of  morals  and  legislation. 

He  that  wrestles  with  us  strengthens  our  nerves  and 
sharpens  our  skill. 

The  cold  neutrality  of  an  impartial  judge. 

There  is,  however,  a  limit  at  which  forbearance 
ceases  to  be  a  virtue. 

He  best  can  point  them  who  can  tell  them  most. 

Praise  undeserved  is  scandal  in  disguise,  at  every 
word  a  reputation  dies. 

For  fools  rush  in  where  angels  fear  to  tread. 

To  err  is  human,  to  forgive  divine. 

Great  wits  are  sure  to  madness  near  allied. 


SHORT    SAYINGS.  171 

None  but  the  brave  deserve  the  fair. 

Dear  beauteous  death — the  jewel  of  the  just. — 
Vdughan. 

"  So  dear  to  heaven  is  saintly  chasity,  that  when  a 
soul  is  sincerely  so,  a  thousand  liveried  angels  lackey 
her. 

Driving  far  off  each  tiling  of  sin  and  iruilt." — Milton. 

Of  one  who  loved  not  wisely,  but  too  well. 

Trifles  light  as  air  are  to  the  jealous  confirmations 
strong  as  proofs  of  Holy  Writ. 

A  good  name  in  man  or  woman  is  the  immediate 
jewel  of  their  souls. 

The  robbed  that  smiles,  steals  something  from  the 
thief. 

How  sharper  than  a  serpent's  tooth  is  it  to  have  a 
thankless  child. 

What  a  man's  enemies  say  about  him  ought  not  to- 
be  taken  as  evidence. 

We  must  be  as  courteous  to  a  man  as  to  a  picture, 
which  we  are  willing  to  give  the  advantage  of  a  good 
light. 

Critics  are  men  who  have  failed  in  literature  and 
art. 

The  secret  of  success  in  life,  is  for  a  man  to  be 
ready  for  his  opportunity  when  it  comes. 

Massena  was  not  himself  until  the  battle  began  to 
go  against  him. 

Fame  is  the  perfume  of  heroic  deeds. 

Oh  !  Icy-hearted  counsellors  !  if  thou  hopest  for  mercy 
in  heaven,  show  mercy  upon  earth  !  worse  than  bloody 
hands  is  a  hardened  heart  ! 

Keep  with  the  good,  and  you  will  be  one  of  them. 


172  TRIAL    PRACTICE. 

The  ancients  were  inspired  in  races  by  dipping  a 
torch  in  burning  oil,  and  running  with  it  in  hand  ;  the 
torches  of  the  winners  never  went  out. 

There  is  no  fiercer  hell  than  failure  in  a  great  at- 
tempt. 

Of  all  the  agonies  of  life,  the  worst  is  that  we  have 
been  deceived  where  we  placed  all  the  trust  of  love. 

In  character,  in  manner,  in  style,  in  all  things,  the 
supreme  excellence  is  simplicity. 

I  am  in  earnest  and  I  will  not  excuse,  I  will  not  re- 
tract an  inch,  I  will  be  heard. 

Popular  opinion  is  the  greatest  lie  in  the  world. — 
Carlyle. 

Words  only  live  when  worthy  to  be  said. 

What  a  piece  of  work  is  man  !  How  noble  in  rea- 
son ;  how  infinite  in  faculties  ;  in  form  and  moving 
how  express  and  admirable  ;  in  action  how  like  an 
angel ;  in  apprehension  how  like  a  God  ! 

TO  PREVENT  DIVORCES. 

The  following  beautiful  and  touching  lines  are  from 

©  © 

the  closing  portion  of  a  discarded  wife's  letter  to  her 
angry  husband,  and  such  was  the  effect  produced  upon 
him  by  them  that  he  returned  to  her  and  reformed. 
For  beauty  of  expression  and  poetic  imagery,  these 
lines  are  unsurpassed  by  anything  in  the  English  lan- 
guage : 

"  May  the  gates  of  honor,  plenty  and  happiness  be 
ever  open  to  thee  and  thine  :  may  no  sorrow  disturb 
thy  days  nor  grief  distract  thy  nights  ;  may  the  pillow 
of  peace  kiss  thy  cheeks,   and  the  pleasures  of  imag- 


SHORT  LEGAL  MAXIMS.  17£ 

ination  attend  thy  dreams  :  and,  when  length  of  years 
shall  make  thee  tired  of  earth's  joys,  and  the  curtain 
of  death  gently  closes  around  the  last  sleep  of  thy 
mortal  existence,  may  the  angels  of  Heaven  attend  thy 
couch,  and  take  care  that  the  expiring  lamp  of  life  re- 
ceives no  rude  blast  to  hasten  its  extinction." 


He  that  layeth  his  hand  upon  a  woman,  save  in  the 
way  of  kindness,  is  a  wretch  whom  'twere  base  flat- 
tery to  call  a  coward/ 

SHORT  LEGAL  MAXIMS. 

Speech  is  the  index  of  the  mind. 

The  law  blushes  when  children  correct  their  parents. 
—  Coke. 

Vainly  does  he  who  offends  against  the  law  seek  the 
help  of  law. —  Coke. 

No  one  ought  to  depart  out  of  a  court  of  chancery 
without  a  remedy. —  Year  Book. 

No  one  is  bound  to  do  an  impossibility. 

A  wise  judge  ought  always  to  regard  equity. 

No  one  is  presumed  to  trifle  at  the  point  of  death. 

All  things  are  presumed  against  a  wrong-doer. 

Argument  drawn  from  authority  is  strongest  in  law. 

Every  one  is  to  be  believed  in  his  own  art. 

Deceit  and  fraud  shall  excuse  and  benefit  no  man. 

Reason  is  the  soul  of  the  law  ;  when  it  ceases,  so- 
does  law. —  Coke. 

Let  every  one  employ  himself  in  what  he  knows. 

He  that  adheres  to  the  letter  adheres  to  the  book. 


174  TRIAL    PRACTICE. 

Many  men  know  many  things,  no  man  knows  every- 
thing.—  Coke. 

Words  spoken  vanish  ;  words  written  remain. 

There  is  no  obligation  to  perform  impossible  things. 

The  agreement  of  parties  makes  the  law  of  their 
contract. 

We  have  the  best  witness,  a  confessing  defendant. 

Few  men  have  ever  repented  of  silence. 

The.  block  of  granite  which  was  an  obstacle  in  the 
pathway  of  the  weak,  becomes  a  stepping-stone  in  the 
pathway  of  the  strong. 

As  the  shadows  in  the  early  morning,  is  friendship 
with  the  wicked ;  it  dwindles  hour  by  hour.  But 
friendship  with  the  good  increases  like  the  evening 
shadows  till  the  sun  of  life  sets. 

The  hand  that  rocks  the  cradle  is  the  hand  that  rules 
the  world. 

This  is  the  country  where  hope  is  the  tailor  of  every 
ragged  boy. 

Who  never  walks  save  where  he  sees  men's  tracks 
makes  no  discoveries. 

Cowards  die  many  times  before  their  time. 

The  valiant  never  taste  of  death  but  once. — /Shakes- 
peare. 

Let  what  every  Roman  thinks  of  his  country  be 
'written  on  his  brow. 


THE    BOOTH    SEDUCTION    CASE.  175 


CHAPTER  XVII. 
THE  BOOTH  SEDUCTION1  CASE 

TRIED    IX    MILWAUKEE,    JULY,    1859. 

This  trial  was  considered  a  test  of  skill  between  the 
•distinguished  rival  advocates,  Ryan  and  Carpenter,  of 
AVisconsin,  wherein  each  did  his  best  to  secure  a  sig- 
nal victory. 

The  case  abounds  in  highly  rhetorical  passages,  and 
was  conducted  with  that  master  skill  and  signal  ability 
with  which  both  counsel  were  amply  endowed. 

Mr.  Carpenter  divided  his  defense  into  four  branches, 
and  eloquently  argued  on  each.  Mr.  Ryan  answered 
Mr.  Carpenter  in  fact  and  law,  and  launched  into  a 
bold  and  independent  position  in  his  own  vindictive 
style  of  oratory,  while  Mr.  Palmer,  who  assisted  Mr. 
Carpenter,  was  exceedingly  skillful  in  cross-examina- 
tion, and  half  won  the  case  by  adroitly  showing  no 
act  was  accomplished  to  constitute  a  legally  defined 
crime. 

The  report  is  out  of  print,  and  the  case  is  exceed- 
ingly rare  and  valuable.  The  nature  of  the  circum- 
.stances,  and  even  the  law  cited  would   be  in  lan^ua^e 


176  TRIAL    PRACTICE. 

•too  delicate  to  repeat  at  length,  but  the  story  is  easily 
read  in  the  chaste  and  ingenious  statements  of  counsel. 

The  case  is  one  of  the  most  celebrated  in  the  North- 
west, and  attracted  vast  crowds  of  listeners  and  much 
newspaper  comment  in  Wisconsin,  where  the  defend- 
ant was  a  man  of  great  influence. 

As  the  law  cited  was  largely  from  the  British  de- 
cisions, and  has  become  thoroughly  known  through 
the  State  reports  —  besides  being  a  little  aside  from 
this  line  of  reports  —  it  is  not  given  in  this  connec- 
tion. 

Mr.  Carpenter  spoke  four  hours,  and  Mr.  Ryan 
eight,  each  using  about  half  his  time  in  reading  to  the 
court  on  separate  branches  of  the  case. 

Mr.  Carpenter  said  in  closing  : 

"  I  suppose  no  one  will  question  the  proposition  laid 
down  in  this  instruction,  but  I  have  put  it  in  the  form 
of  an  instruction,  that  it  may  come  to  you  in  that 
form  with  the  authority  of  law  from  the  bench.  That 
it  may  stand  before  you  as  a  fixed  light  in  your  path 
while  you  deliberate  upon  the  argument  of  the  coun- 
sel who  will  close  the  discussion  of  this  case  :  whose 
special  duty  it  will  be  to  sum  up  on  behalf  of  the 
prosecution.  He  is  a  strongman,  and  he  comes  to  the 
task  with  that  feeling  which  no  lawyer  who  has  long 
been  enlisted  in  a  cause  can  put  out  of  his  heart  — 
least  of  all  Mr.  Ryan.  He  will  come  to  you  with  a 
strong  conviction  himself,  and  with  those  earnest  feel- 
ings and  that  desire  for  success  which  he  can  no  more 
divorce  himself  from  than  he  can  change  any  attribute 
of  his  mind  and  heart.  I  expect  he  will  speak  learn- 
edly and  eloquently,  as  he  goes  through  the  case.     He 


THE    BOOTH    SEDUCTION    CASE.  177 

will  examine  this  testimony  in  detail  with  piercing  acu- 
men, and  point  out  the  inconsistencies  of  our  wit- 
nesses. I  expect  this.  1  expect  him  to  analyze  our 
proof  with  all  his  severity  ;  see  him  do  what  I  have 
often  seen  him  and  other  great  lawyers  do  —  when 
there  are  no  facts  to  stand  upon  —  soar  upward  into 
the  regions  of  poetry  and  imagination  ;  and  appeal  to 
the  deep  feelings  of  your  nature  :  when  he  feels  and 
trembles  at  the  weakness  of  his  proof  upon  seduction 
—  he  will  soar  away  above  the  testimony  and  deal  in 
glittering  generalities,  and  wonderful  nights  of  specu- 
lation. He  can  do  it  well,  and  he  will  do  it.  lie  will 
put  Booth  through  such  a  course  of  sprouts  on  moral- 
ity and  virtue  as  no  human  being  in  this  world  was 
ever  taken  through  before.  He  will  torture  him,  and 
crucify  him,  and  bring  the  blood  to  his  cheek,  and  dis- 
miss it  to  his  heart  at  his  sarcasm  and  his  scorching 
sentences.  He  smiles  and  shakes  his  head  at  me.  He 
can  not  help  doing  it.  [Laughter.]  But  I  have  to 
remind  you  that  the  instructions  of  the  court  will  come 
after  his  remarks,  to  call  you  back  again  to  the  region 
of  the  testimony,  and  explain  to  you  the  duty  you  will 
have  to  perforin,  remaining  fixed  and  firm  in  your 
minds  after  his  eloquence  is  over,  and  you  have  re- 
tired to  your  solemn  determination  in  the  jury  room. 
*  *  *  *  #  * 

"Now,  gentlemen,  I  will  leave  this  case  with  you, 
hoping  that  you  will  banish  from  your  hearts  all  preju- 
dice ;  all  mere  feeling  :  resist  the  enchantment  of  elo- 
quence ;  and  look  only  upon  the  law  and  the  testi- 
mony. I  have  confidence  that  twelve  men  sitting 
here,  with  your  look  of  fairness  and  intelligence,  can- 

(12) 


178  TRIAL    PRACTICE. 

not  be  bewildered  by  the  gentleman  with  all  his 
power.  That  you  will  consider  the  facts  alone  :  inter- 
preting them  by  the  law  as  given  to  you  from  the 
bench,  upon  which  this  defendant  is  to  be  tried  and  a 
verdict  rendered  of  conviction  or  acquittal  —  speaking 
only  the  conclusions  of  truth.  That  you  will  not  al- 
low 3'ourselves  to  be  switched  off  the  track  of  evi- 
dence by"  any  exaggerated  denunciations  of  vice  and 
licentiousness  ;  or  an  appeal  to  you  to  rebuke  sin  gen- 
erally. You  will  examine  carefully  into  this  particular 
transaction  —  and  this  alone.  It  is  a  solemn  duty  on 
your  part,  to  throw  out  of  your  minds  all  prejudice, 
bias  and  passion,  and  search  for  facts  as  they  appear 
in  the  light  of  truth.  One  of  you  who  are  now  jurors 
judging  this  man,  may  come  here  asking  justice  at  the 
hands  of  another  jury.  You  are  liable,  at  any  time 
of  your  lives,  to  be  involved  in  such  trouble.  Inno- 
cence may  be  yours,  yet  it  may  not  always  shelter  you 
from  arrest  and  prosecution.  Although  it  may  sustain 
your  conscience,  it  does  not  always  prevent  indict- 
ments, arrests,  prosecutions  and  trials,  and  any  one  of 
you,  although  innocent  as  the  heart  of  man  can  be, 
may,  in  a  month  from  this  day,  stand  here  charged 
with  such  a  crime  as  is  now  urged  against  this  defend- 
ant. It  is  the  great  lesson  from  the  Great  Teacher 
that  I  am  now  trying  to  enforce  upon  you:  "With 
what  judgment  ye  judge,  ye  shall  be  judged  ;  and  with 
what  measure  ye  meet,  it  shall  be .  measured  to  you 
again." 

I  do  not  believe  that  the  counsel  can  more  sincerely 
or  honestly  regret  this  transaction  than  I  do,  or  de- 
nounce immorality  and  vice  generally  with  one  single 


THE    BOOTH   SEDUCTION    CASE.  179 

word  with  which  you  and  I  would  not  cheerfully 
agree,  but  we  come  here  to  administer  criminal  justice 
among  men,  fallen  as  they  are,  degraded  by  passions, 
and  often  led  astray  by  the  prompting  of  our  erring 
nature,  and  to  hold  us  up  to  the  severe  standard  of 
law  as  it  will,  perhaps,  be  administered  in  the  good 
time  coming  —  to  make  men  responsible  to  the  se- 
verest rule  for  the  slightest  offense  ;  to  deprive  a  man 
of  his  life  and  liberty  for  the  least  possible  insult  to  a 
woman,  would  be  a  gross  outrage  upon  our  common 
nature.  Your  oath  does  not  bind  you  to  enforce  jus- 
tice as  if  you  lived  in  that  fortunate  age  when  the  law 
in  all  its  perfection  will  be  executed,  and  man  with  re- 
generated nature  observe,  or  suffer  for  the  violation  of 
all  its  requirements  :  "  When  the  wolf  also  shall  dwell 
with  the  lamb,  and  the  leopard  shall  lie  down  with  the 
kid,  and  the  calf  and  the  young  lion  and  the  fattling 
together,  and  a  little  child  shall  lead  them." 

The  theory  of  the  counsel  will  probably  apply,  but 
it  never  tan  be  enforced  till  that  time.  You  are  to 
administer  justice  calmly  and  with  charity.  There  is 
something  in  the  heart  of  every  man  when  he  comes 
out  in  the  sun  and  looks  at  vice,  that  is  apt  to  startle 
him,  and  lead  him  into  great  extravagance,  yet  all 
men,  under  certain  circumstances,  may  at  least  be 
tempted.  I  do  not  say  that  every  man  will  fall,  but 
we  know  that  all  men  may  be  tempted,  and  you  are  to 
remember  that  it  is  your  duty  to  try  man  as  he  is. 
You  are  not  to  be  led  away  and  lost  in  any  extrava- 
gant denunciation  of  crime  and  immorality  in  general, 
but  to  investigate  this  one  particular  offense,  and  say 
in  the  same  quiet  and  calm  manner  in  which  you  would 


180  TRIAL    PRACTICE. 

settle  any  other  question  that  might  be  brought  before 
you  in  the  discharge  of  your  duty  as  jurors.  You  may 
entertain  as  much  indignation  as  you  please  against 
vice  and  licentiousness  generally,  but  do  not  pour  it  all 
out  in  this  case.  Give  us  only  our  share  ;  remember 
that  we  claim  no  exemption  from  the  ordinary  condi- 
tion of  humanity  —  remember  that  none  of  us  stand 
k'  by  the  course  of  strict  justice,"  but  because  mercy 
is  mingled  with  justice  —  remember  that  we  all  look 
for  redemption  from  the  frailties  and  infirmities  of  this 
state,  and  for  admission  into  the  circles  of  immortal 
blessedness,  to  the  intercessions  of  a  Savior  of  infirmi- 
ties and  passions. 

JUDGE  RYAN'S  CLOSING  ARGUMENT. 

Gentlemen  of  the  jury: — A  great  deal  of  explana- 
tion has  taken  place  both  in  the  progress  and  summing 
up  of  this  trial,  as  to  the  nature  of  this  crime.  I  must 
say  that  I  do  not  think  that  the  first  counsel  who 
summed  up  here  for  the  defense  made  light  of  it.  I 
do  not  recollect  that  his  associate  shared  in  the  light 
tone  with  which  the  first  counsel  spoke  of  this  crime 
and  its  commission.  I  am  not  to  dwell  at  length  upon 
it  again,  gentlemen,  but  I  say  it  is  a  crime  in  our  day 
and  generation  of  a  grave  nature,  and  the  time  is  com- 
ing, and  coining  fast,  when  it  will  be  graver.  The 
sanctity  of  woman's  person,  the  holiness  of  woman's 
chastity,  are  among  human  objects,  next  to  life  alone, 
the  gravest  subject  of  legal  protection.  What  are  we, 
or  what  have  we,  if  we  have  no  reverence  for  the  per- 
son,—  faith  in  the  chastitv  of  woman.     Take  chastity 


THE    BOOTH    SEDUCTION    CASE.  181 

from  her,  and  turn  her  out  to  run  riot  with  the  passion 
as  men  do,  and  where  is  society?  Where  the  organi- 
zation of  the  world?  Lose  faith  in  the  paternity  of 
children,  lose  faith  in  consanguinity,  and  you  hare  no 

marriage,  no  paternity,  no  family  —  and  what  is  so- 
ciety but  the  combination  of  familes?  Man  in  the 
sense  of  sex  is  but  a  better  brute,  but  unlike  other 
brutes  has  faith  in  the  chastity  of  his  female.  And, 
gentlemen,  God  meant  that  we  should  have  it.  God 
gave  us  that  faith.  I  remarked  yesterday  that  He  had 
not  given  to  us  the  same  chastity  that  we  might  under- 
stand and  comprehend  the  chastity  of  woman.  But  if 
God  did  not  give  us  that,  He  gave  u>  innate  faith  in 
hers.  It  is  not  because  of  the  sex  of  our  mother,  our 
wife,  our  sister,  our  daughter  ;  it  is  because  we  have 
an  instinct  of  nature  that  woman  is  of  a  purer  mould 
than  man,  and  her  chastity  is  a  thing  to  be  trusted  in, 
as  we  trust  in  the  providence  of  God.  And  when  we 
speak  lightly  of  it,  as  I  must  confess  to  the  shame  of 
us  all  who  are  apt  to  do  it,  it  is  because  in  mere  vul- 
gar riot  of  language  we  do  injustice  to  our  feelings  and 
thoughts,  or  because  we  have  degraded  our  own  na- 
ture by  lewd  practices  down  almost  to  the  level  of  the 
brute.  What  is  the  world  worth  without  the  chastity 
of  woman?  (  H-  what  U  man  worth  who  has  not  a  high 
respect  for  the  sex  of  woman,  a  strong  faith  in  her 
chastity?  Such  a  man  is  to  be  dreaded  ;  distrusted  as 
one  in  whom  you  can  put  no  faith,  for  his  character 
has  fallen  or  is  falling. 

As  has  been  said  here  by  both  counsel  for  the  de- 
fense, there  are  four  things  necessary  to  establish  in 
this  crime,    I   will    follow    somewhat    in    their  order. 


182  TRIAL    PRACTICE. 

First,  the  marriage  of  the  defendant,  which  is  not  dis- 
puted ;  second,  the  previous  chaste  condition  of  the 
female;  third,  seduction,  and  fourth,  illicit  connec- 
tion. I  do  not  agree  with  the  counsel  that  the  seduc- 
tion and  the  connection  are  so  very  materially  apart  in 
fact,  as  they  seem  to  think  ;  but  I  will  take  these  things 
in  the  order  in  which  they  name  them,  and  go  through 
them  with  them. 

We  then  come  first,  gentlemen,  to  the  previous 
chastity  of  character  of  that  little  girl,  Caroline  Cook, 
who  was  here  before  us  on  the  stand.  The  learned 
counsel  who  has  summed  up  this  cause  said  we  had 
christened  her  a  child  during  this  trial  for  stage  effect. 
Did  the  gentleman  suppose  that  any  stage  effect  we 
could  use,  would  dupe  you  who  saw  the  witness  upon 
the  stand  twice,  and  toward  whom  your  attention  was 
particularly  drawn.  I  called  her  a  child  without  re- 
flection, because  she  seemed  to  me  a  child  ;  because,  in 
all  the  proper  attributes  of  childhood  she  appeared 
upon  the  stand,  and  was  proved  to  be  a  child.  And, 
gentlemen,  when  we  brought  that  child  upon  the  stand 
and  showed  her  to  you,  and  proved  by  her  that  on  the 
28th  of  February  last,  scarcely  then  more  than  four- 
teen years  of  age,  she  had  had  criminal  connection 
with  this  defendant,  when  she  swore  to  her  own  shame 
upon  her  simple  oath  ;  you  heard  the  simple  story  of  a 
simple  child  ;  a  child  you  could  see  was  not  a  witness 
telling  a  story.  Upon  the  manner  and  nature  of  her 
testimony  I  shall  comment  hereafter.  She  was  a  wit- 
ness who  looked  back  upon  her  memory  for  all  she 
said,  and  then  plainly  and  truthfully  told  it.  She 
stood  cross-examination   here  under  peculiar  circum- 


THE    BOOTH    SEDUCTION    CASE.  183 

stances.  She  was  a  simple  girl  in  the  hands  of  an 
able  lawyer,  and  she  stood  there  surrounded  with  all 
the  embarrassments  of  her  position  —  the  terrible  em- 
barrassments of  a  child  at  that  age  making  such  a  dis- 
closure, after  the  months  of  shame  she  must  have 
borne  since  the  first  discovery,  broken  in  spirit,  con- 
scious that  every  cold  eye  here  was  fixed  staringly  at 
her  with  somewhat  of  morbid  curiosity.  Under  all 
these  circumstances  that  child  stood  cross-examination 
as  no  bold  practiced,  determined,  resolute  woman, 
that  they  introduced  here  through  the  agency  of  Mr. 
Peter  Turck,  stood  it.  The  gentleman  cross-examined 
her  long  and  severely,  yet  she  never  tripped  ;  for  no 
honest,  truth-speaking  witness  need  ever  trip.  It  is 
when  witnesses  do  what  Peter  Turck's  witness  did, 
what  Sheridan  once  said  another  statesman  did,  draw 
on  his  imagination  for  his  facts,  that  witnesses  stum- 
ble, and  trip,  and  break  down.  Do  you  suppose  that 
that  little  child,  of  an  age  so  young,  and  frail  and 
childlike  that  every  one  was  surprised  at  her  appear- 
ance, could,  by  any  possibility  of  things,  have  had  a 
previous  unchaste  career?  In  the  name  of  God,  where 
can  unchastity  begin?  Is  a  female  child,  a  little  inno- 
cent child,  which  sometimes  disturbs  its  drapery,  un- 
chaste in  the  view  of  the  counsel?  Would  they  con- 
sider a  child  of  three  years  old  that  drops  its  pantalets 
as  unchaste?  At  what  age,  I  ask,  can  unchastity  be- 
gin, for  God's  sake.  No,  gentlemen,  let  man  keep 
unchaste  influence  from  the  childhood  of  woman,  and 
she  will  grow  up  chaste.  Woman  is  never  corrupted 
by  woman.  There  is  an  outcast  race  of  women  who 
corrupt  for  profit,  who  corrupt  as  a  trade,  but  not  un- 


184  TRIAL    PRACTICE. 

til  they  themselves  have  been  corrupted  by  man  —  not 
until  a  long  career  of  corruption  has  qualified  them  for 
the  work.  No  woman  becomes  a  prostitute  or  a  lewd 
woman  save  through  the  influence  of  the  affections 
God  gave  her  towards  man.  We  may  safely  say  that 
whenever  woman  loses  her  virtue,  she  loses  it  from  no 
innate  lust,  from  no  female  influence,  but  she  gives  up 
chastity,  virtue,  reputation,  character,  everything,  to 
her  affection  for  some  rascal  of  a  man,  who  betrays 
her,  through  the  weakness  of  love,  to  guilt.  And  was 
it  conceivable  that  this  little  girl,  found  throughout  all 
the  evidence  on  both  sides,  a  child  amongst  children, 
as  was  well  observed  by  Mr.  Corson,  should,  of  her 
own  nature,  and  at  her  tender  years,  have  formed  an 
unchaste  character,  and  become  an  unchaste  woman? 
You  have  all  the  malignity  that  could  be  brought  to 
bear  upon  her  poured  out  before  you  in  the  form  of 
testimony. 

How  does  their  testimony  agree?  Gentlemen,  we 
sometimes  look  for  too  much  policy  in  villainy.  We 
are  apt  to  suppose  that  villainy  is  necessarily  able.  It 
is  not  so.  Rascals  are  very  often  fools.  In  one  sense 
every  rascal  is  a  fool,  for  honesty  is  the  best  policy. 
But  often  when  men  have  become  rascals,  there  is  no 
sense  in  their  rascality.  They  are  often  foolish  in  its 
practice.  I  think  I  can  show  you  one  rascal  who  has 
been  a  great  fool  in  this  cause.  There  is  not  a  witness 
brought,  or  attempted  to  be  brought  here,  who  has  not 
been  visited  again  and  again  and  over  again  by  Mr. 
Peter  Turck.  Mark  you,  we  find  him  out  of  that  little 
neighborhood.  He  has  been  scouring  the  whole  town. 
We  find  him  on  Michigan  street,  and  in  other  places 


THE    BOOTH    SEDUCTION    CASE.  185 

as  we  proceed  in  the  investigation.  The  counsel  may 
say  that  it  is  proper  for  an  employed  attorney — a  man 
if  you  please  —  employed  to  do  the  dirty  work  of  the 
case,  to  go  and  see  the  witnesses  and  find  out  what 
they  know.  I  grant  that.  If  it  were  my  cause,  how- 
ever, I  should  prefer  another  man.  I  should  not  like 
the  association.  I  would  not  bear  it.  I  tell  you  now, 
I  say  it  in  the  presence  of  this  bar,  and  there  is  no 
lawyer  here,  although  I  see  them  from  abroad,  as  well 
as  from  this  city,  who  will  deny  what  I  say.  Dema- 
gogues may  tell  you  what  they  will,  but  lawyers  are  a 
great  old  race.  Lawyers  are  a  great  and  a  good  race, 
and  the  disgrace  and  shame  which  has  been  attached 
to  the  profession,  has  been  brought  upon  it  by  those 
who  intrude  themselves  into  it  without  qualification, 
who  hang  around  its  outskirts  —  the  shysters  of  the 
law.  Give  us  the  power  to  organize  ourselves,  let  us 
have  the  power  of  expulsion,  and  I  will  guarantee  to 
you  that  the  bar  of  Milwaukee,  with  the  power  of  ex- 
pelling its  unworthy  members,  would  in  six  months 
be  as  pure  as  any  church.  But  you,  the  people,  give 
such  a  man  as  this  the  power  to  call  himself  a  lawyer, 
in  our  defiance. 

They  say  that  seduction  must  be  a  lengthy  process, 
going  on  a  long  while  ;  there  must  be  a  great  resist- 
ance, and  a  final  involuntary  surrender.  The  learned 
counsel  quoted  a  passage  from  one  of  the  most  im- 
moral pieces  of  poetry  in  the  English  language  —  Don 
Juan  —  about  a  lady  who,  "Saying  she  would  ne'er 
consent,  consented:"  feigning,  denial  in  the  act  of 
consenting.  I  read  that  poetry  a  long  while  ago,  when 
I  knew  no  better.     I  do  not  studv  it  now,  and  I  would 


186  TRIAL    PRACTICE. 

not  like  to  quote  it  very  extensively.  But  I  recollect 
the  history  of  that  lady.  My  impression  is  that  she 
was  not  the  subject  of  seduction.  She  was  a  young 
and  dashing  lady,  married  to  an  old,  imbecile  man, 
who  had  the  happiness  of  supporting  her,  but  his  other 
functions  were  vicariously  discharged.  [Laughter.] 
Her  example  will  not  serve  in  the  seduction  of  a  girl. 
There  need  be  no  long  process.  There  must  be  some 
seduction,  I  admit.  A  man  meets  a  woman,  whether 
he  speaks  to  her  about  statues  or  not,  invites  her  as  this 
girl  was  invited,  and  she,  a  woman  of  maturity,  know- 
ing the  uses  of  sex,  deliberately  yields  to  him  without 
persuasion.  I  do  not  think  that  is  seduction.  It 
is  a  mutual  connection  —  a  sort  of  Eamsbeck  mar- 
riage. But  the  statute  says  that  if  a  man  promises  to 
marry  a  girl,  and  under  that  promise  knows  her  per- 
son, it  is  seduction.  There  need  be  no  resistance.  The 
promise  makes  it  seduction.  So  if  a  married  man 
seduce  a  woman  ;  that  cannot  be  under  promise  of 
marriage,  if  she  knows  he  is  married,  as  this  girl  knew 
of  the  defendant.  There  must  be  other  means.  How 
much,  how  little,  is  not  important.  Any  adequate 
means  is  enough.  I  make  this  remark  to  the  court, 
also.  And  these  means  are  to  be  estimated  by  the 
age  of  the  woman,  her  experience,  knowledge  of  the 
world,  and  comprehension  of  what  she  is  about ;  and 
somewhat  by  the  relative  age  and  position  of  the  , 
seducer. 

He  sits  alone  by  that  child  in  his  parlor,  and  he 
kisses  her.  The  clammy  kiss  of  lust  is  upon  her  young 
mouth.  The  burning  touch  of  lust  is  upon  her  person, 
and  he  wonders  what  sort  of  a  statue  she  would  make. 


THE    BOOTH    SEDUCTION    CASE.  *  187 

He  tells  her  Mr.  Lund  pays  girls  much  money  for 
their  statues  made  from  the  person,  and  he  wonders 
what  sort  of  a  statue  she  would  make.  Gentlemen, 
you  can  fill  up  the  gap  of  knowledge.  You  can  re- 
member what  the  child  has  forgotten  ;  all  the  insensi- 
ble approaches  of  lust,  coming  with  the  air  of  author- 
ity from  the  protecting  hand  of  the  man  who  stood  as 
her  guardian  and  father,  the  man  who  in  the  eye  of 
the  law  stood  in  Joco  parentis  over  her.  He  was 
charged  with  a  father's  duty  and  protection,  and  with 
that  authority,  approach  after  approach  of  lust  can  be 
well  imagined.  The  poor  girl  tells  of  the  kiss,  and  the 
vile  suggestion  of  the  statue.  You  can  imagine  the 
fiery  touch  of  his  lustful  kiss,  and  the  desecrations  of 
the  sanctity  of  her  person.  You  can  imagine  the  intox- 
ication of  mind,  the  sly  but  burning  manipulations  of 
body.  She  cannot  remember  them,  because  she  did 
not  comprehend  them  ;  she  was  bewildered  by  them. 
But  she  was  not  there  an  hour  and  a  half  for  nothing 
but  a  solitary  kiss,  and  a  lewd  suggestion  about  her 
statue.  She  was  to  be  invited  to  his  bed,  and  he  is  not 
the  man  to  lose  his  time  when  the  opportunity  was 
offered.  He  is  enterprising  and  diligent  in  all  things. 
He  was  diligent  in  seduction.  What  did  he  bring  her 
there  for?  Why  did  he  hide  her  in  that  back  parlor 
from  her  mother,  from  the  other  children,  from  the 
servant  girl,  but  to  seduce  her  to  his  bed?  We  have 
the  vile  purpose  —  not  denied  here.  No  one  has  the 
gravity  to  deny  the  motive.  He  had  her  there  to 
seduce  her,  and  do  you  think  he  wasted  his  time?  Do 
you  think  he  spent  those  hours  in  reading  or  smoking, 
or  doing  nothing?      No,  whatever  work  he  is  at,  he  is 


188  TRIAL   PRACTICE. 

■diligent  to  accomplish  it.  In  seduction,  as  in  every- 
thing else,  he  is  a  good  worker.  He  never  idled  away 
hour  after  hour.  He  made  good  use  of  it.  He  had  a 
girl  premature  of  body,  but  immature  of  mind,  four- 
teen years  of  age.  What  did  she  do?  In  the  lan- 
guage of  the  English  authority,  she  yielded  **  a  pas- 
sive non-resistance  —  not  an  active  consent."  With 
her  seduction  could  go  no  farther. 

Is  there  no  seduction  in  these  relations  in  that  posi- 
tion? I  know  that  counsel,  Mr.  Palmer,  and  I  know 
his  associate  well.  I  know  that  if  these  facts  had  hap- 
pened to  a  child  of  either  of  them — just  the  facts  as 
they  admit  them,  this  indictment  never  would  have 
been  found.  If  either  Mr.  Palmer's  or  Mr.  Carpen- 
ter's child,  of  the  same  age  and  under  the  same  cir- 
cumstances, had  returned  home  to  tell  this  story,  no 
indictment  would  have  been  found.  There  might 
afterwards  have  been  found  an  indictment  for  murder! 
[Sensation.] 

And  there  is  that  mark  of  deeper  crime  —  I  may 
comment  upon  it  —  the  taking  of  the  poor,  humble, 
powerless  man's  daughter.  Why  not  take  the  daugh- 
ter of  his  equal,  of  a  man  who  dared  to  act  as  a  father 
should  act  —  face  the  community  with  the  guilt  of 
blood  upon  his  hands  (to  Mr.  Palmer),  as  you  would 
have  done?  I  will  go  further.  There  sits  the  judge  of 
the  law,  and  there  the  executive  of  the  law — they  would 
have  done  it.  I  do  not  believe  you  can  find  ten  men 
in  this  room  who  would  not  have  done  it  just  on  that 
knowledge.  Call  it  seduction,  or  not  seduction.  If 
that  man  had  failed  in  his  purpose,  if  he  had  merely 
invited  my  child    or   yours  there,  merely  kissed  her 


THE    BOOTH   SEDUCTION    CASE.  18£> 

with  the  kiss  of  lust,  merely  suggested  that  damned 
model-artist  practice  to  her,  and  the  child  had 
left  the  house,  the  man  would  have  died  !  By 
heaven,  the  man  would  have  been  shot!  If  the 
child  had  come  unspotted,  save  by  the  insult,  there 
are  few  honest  and  hot-blooded  men  who  would  not 
have  shot  him  for  the  attempt  that  failed.  You  may 
call  that  murder,  if  you  will.  It  never  yet  was  pun- 
ished for  murder.  The  lad  who  shot  the  seducer  of 
his  sister  on  the  boat  at  Philadelphia,  was  as  clearly 
guilty  of  legal  murder  as  any  man  ever  was,  but 
no  jury  conricted  him,  though  I  believe  he  made  no 
defense.  I  speak  of  that  not  to  exaggerate  what  was 
done,  but  to  show  to  every  man's  comprehension  that 
it  was  seduction  —  to  yours,  to  mine,  to  the  judge's,  to 
every  man's.  It  was  seduction  at  that  age,  in  those 
relations.  With  all  the  gaps  in  the  fading  memory  of 
that  poor  child,  so  outraged,  we  can  see  it  is  seduction, 
seduction  beyond  doubt.  That  there  was  more  of  it, 
we  have  none  of  us  any  doubt.  There  was  more  Ave 
all  know.  But  without  asking  the  jury  to  till  up 
any  vacancies  in  the  evidence,  there  was  seduction 
enough. 

The  invocation  was  made  to  you  by  the  learned 
counsel,  Mr.  Carpenter,  to  remember  that  your  verdict 
of  guilty  here,  would  not  merely  damn  the  character 
of  this  defendant,  damn  his  reputation,  but  in  some 
measure,  by  reflection,  injure  the  reputation,  and  de- 
stroy the  happiness  of  his  family.  Gentlemen,  it  is 
the  misfortune  of  innocence  that  jruilt  is  almost  never 
incurred  that  some  part  of  the  blow  does  not  fall 
heavily  upon  the  innocent.      Every  man  who  commits 


190  TRIAL    PRACTICE. 

a  crime  has  some  wife,  some  child,  some  sister, 
some  mother,  some  kin,  some  dependant,  innocent, 
but  ruined  and  broken-hearted  in  the  punishment  of 
of  his  guilt.  That  is  not  our  fault.  We  prosecute 
guilt,  not  innocence.  If  innocence  suffer,  we  all  have 
sympathy  for  it.  But  if  the  reflected  suffering  of  in- 
nocence is  to  acquit  this  defendant,  it  is  to  acquit 
every  defendant  indicted  on  a  criminal  charge.  For 
there  is  no  man  so  outcast,  so  removed  from  the  heart 
of  society,  that  some  faithful,  true  woman's  heart 
will  not  bleed  at  his  misfortune  ;  that  some  child  will 
not  be  left  fatherless,  worse  than  fatherless,  with  an 
indelible  stigma  upon  the  father's  name.  But,  gentle- 
men, I  think  in  this  case  you  are  relieved  from  even 
that  difficulty.  It  is  immaterial  for  the  character  of 
this  accused,  whether  you  convict  or  not.  The  disclo- 
sures of  this  trial,  his  own  defense,  his  own  confession, 
fix  his  moral  guilt  as  long-  as  his  name  lasts.  And 
whoever  remembers  his  name  hereafter,  remembers 
the  moral  guilt  of  this  tragedy  forever.  His  guilty 
name  goes  with  him  forever,  be  your  verdict  what  it 
may. 

The  first  counsel  pleaded  hard  to  you  to  find  a  doubt 
in  this  case,  and  acquit  upon  that  doubt.  This  court 
will  tell  you,  and  I  will  tell  you,  in  broad  language,  it 
is  the  duty  of  every  one  coming  as  prosecutor,  to  tell 
the  jury  that,  if  they  have  a  reasonable  doubt  of  the 
defendant's  guilt,  they  must  acquit.  We  have  no  ver- 
dict of  "not  proven,"  as  in  the  Scotch  law.  You 
cannot  say  that  he  is  not  proved  guilty.  You  are  to 
find  him  guilty  or  not  guilty.  In  England  they  speak 
of    adopting   the    Scotch    verdicts    of    guilty,   or   not 


THE    BOOTH    SEDUCTION"    CASE.  191 

proven,  or  not  guilty;  but  the  verdict  of  not  proven 
is  not  in  our  law.  If  you  have  a  reasonable  doubt,  a 
rational  doubt,  on  your  minds,  of  his  guilt,  you  are  to 
find  him  not  guilty. 

I  invoke  you,  not  in  the  name  of  the  father,  my 
client  in  the  civil  suit,  but  in  the  name  of  the  State, 
my  client  in  this  suit,  before  you  do  that,  pause  well 
and  solemnly.  Give  back  to  society  the  child  it  has 
lost  —  the  virtuous  child  that  would  have  been  a  virtu- 
ous woman.  Give  back  to  the  world  one  of  the  gems 
of  society,  a  pure  and  virtuous  virgin,  to  become  in 
time  a  pure  and  virtuous  matron.  Restore  to  mankind 
unsullied  one  of  the  foundations  of  civilization  —  a 
pure  and  true  and  spotless  woman.  If  you  give  back 
a  polluted  child,  a  deflowered  virgin,  I  claim  your  ver- 
dict against  the  ijruilt  that  made  her  so. 

"  And  the  Lord  sent  Nathan  unto  David.  And  he 
came  unto  him  and  said  unto  him.  There  were  two 
men  in  one  city;  the  one  rich,  and  the  other  poor. 
The  rich  had  exceeding  many  flocks  and  herds  ;  but  the 
poor  man  had  nothing,  save  one  little  ewe  lamb  which 
he  had  bought  and  nourished  up  ;  and  it  grew  up  to- 
gether with  him,  and  with  his  children;  it  did  eat  of 
his  own  meat,  and  drank  of  his  own  cup,  and  lav  in 
his  bosom,  and  was  unto  him  as  a  daughter. 

"  And  there  came  a  traveler  unto  the  rich  man,  and 
he  spared  to  take  of  his  own  flock,  and  of  his  own 
herd,  to  dress  for  the  wayfaring  man  that  was  come 
unto  him  ;  but  took  the  poor  man's  lamb  and  dressed 
it  for  the  man  that  was  come  to  him. 

"And  David's  anger  was  greatly  kindled  against 
the  man:   and  he  said  to  Nathan,  as  the  Lord  liveth, 


192  TRIAL   PRACTICE. 

the  man  that  hath  done  this  thing  shall  surely  die. 
And  he  shall  restore  the  lamb  four-fold,  because  he 
did  this  thing,  and  because  he  had  no  pity.  And 
Nathan  said  to  David,"  (Mr.  Ryan  pointed  solemnly 
to  the  accused),  "  Thou  art  the  man." 


RIGHTS    AND    REMEDIES. 


193 


CHAPTER  XVIII. 


RIGHTS    AND   REMEDIES. 


The  following  condensed  summary  of  common 
rights  and  remedies  cannot  fail  to  be  useful  to  students 
and  laymen,  if  not  to  trial  lawyers,  who  can  see  at 
a  glance  the  essentials  of  each  division.  The  separate 
divisions  are  all  from  standard  text  books  abbreviated  : 

An  action  is  the  demand  of  a  right  by  process  of 
law,  divided  into  : 

Real  actions,  such  as  pertain  to  the  recovery  of  real 
estate. 

Personal,  such  as  pertain  to  the  recovery  of  goods 

and  chattel. 

Mixed,  where  recovery  of  real  property  and  also 
goods  and  chattels  arc  demanded. 

MIXED  AND  REAL  ACTIONS  ARE  : 

Ejectment,  for  possession  of  land  and  damages. 
Right  of  dower,  for  widow's  right  in  property. 

PERSONAL    ACTIONS   ARE  : 

Debt,  where  a  party  sues  for  the  recovery  of  a 
liquidated  amount  due  him,  as  on  a  judgment  rendered 
elsewhere. 

(13) 


194  TRIAL    PRACTICE. 

Covenant,  where  a  party  claims  damages  for  a 
breach  of  covenant. 

Detinue,  where  a  party  claims  specific  recovery  of 
goods  detained,  as  where  a  person  promises  in  a  note 
to  pay  the  bearer  so  many  bushels  of  wheat,  oats, 
etc.,  and  fails  to  perform. 

Trespass,  where  party  claims  damages  for  injuries 
committed  with  violence. 

Trespass  on  the  case,  where  party  claims  damages 
for  injuries  which  are  not  direct,  but  consequential ; 
broad  enough  for  slander,  libel  and  trespass. 

Trover,  where  one  wrongfully  converts  the  goods  of 
another. 

Replevin,  to  recover  goods  wrongfully  detained  from 
their  owner  or  person  lawfully  entitled  to  possession. 

Evidence  required,  is  to  set  up  the  facts  and  prove 
them. —  Blackstone. 

ASSUMPSIT. 

Founded  on  undertaking  of  defendant,  not  under 
seal.  The  averment  is  that  he  undertook  and  prom- 
ised to  pay,  etc.,  the  money  lent,  work  done,  goods 
furnished,  or  do  the  act  named. 

If  there  is  a  special  contract  still  open,  and  of  same 
subject-matter  as  common  counts,  and  plaintiff  fail  on 
contract,  he  may  recover  on  the  other.  Three  rules 
govern  assumpsit : 

1.  So  long  as  the  contract  continues  unfinished,  plain- 
tiff must  declare  specially,  but  when  executed  on  his 
part,  and  nothing  but  payment  remains,  he  may  de- 
clare generally  on  common  counts. 


RIGHTS    AND    REMEDIES.  195 

2.  "When  contract  partly  performed  is  abandoned  by 
consent,  plaintiff  may  sue  on  common  counts  for 
amount  done  under  special  contract. 

3.  Where  what  has  been  done  was  under  special  con- 
tract, but  no  time  fixed,  and  yet  benefited  defendant, 
and  was  accepted  by  him,  even  if  plaintiff  has  not 
fully  performed,  he  can  recover  for  the  worth  and 
■value  done,  not  exceeding  contract  price,  less  any  dam- 
age for  failure  to  do  all. 

The  plea  in  assumpsit  is  the  general  issue,  and  puts 
plaintiff  to  his  proof  of  all  material  matters — time, 
place,  debt,  or  implied  promise.  Defendant  may  plead 
in  abatement,  or  prove  payment,  or  misnomer,  and 
may  use  a  set-off,  if  he  has  one,  but  that  is  better 
saved  for  a  separate  cross  suit. — Kent. 

BILLS    AXD    NOTES. 

A  note  is  a  written  promise  to  pay  a  tixed  sum  at  a 
time  named  to  the  person  or  order  designated,  signed  by 
the  person  contracting,  and  generally  by  endorsers. 
They  are  presumed  to  be  founded  on  a  valid  consider- 
ation. The  burden  is  on  defendant  to  show  other- 
wise. 

Under  general  statutes,  notes  not  denied  under  oath 
prove  themselves.  "When  sued  upon,  declaration  must 
be  special  and  the  note  offered  in  evidence.  Generally, 
the  signature  and  amount  due  are  proven. 

RILLS    OF    GOODS, 

Over    which    many    suits    arise    should    be    itemized. 
•Claims  for  damaged  goods  not  made  within  ten   days 


196  TRIAL   PRACTICE. 

after  delivery,  lire  not  valid.  Common  counts  are  suf- 
ficient for  declaration,  and  general  issue  for  plea.  It 
is  best  to  have  bills  admitted,  which  an  adroit  attorney 
will  do  before  trial,  and  before  suit  begins,  if  possible. 
Protested  notes  to  hold  endorsers  should  be  done  by 
a  bank  notary.  They  know  that  three  full  days  of 
grace  are  allowed,  and  notice  to  bo  good  must  not  be 
mailed  nor  served  before  the  end  of  the  third  bank 
day. — Parsons  on  Bills  and  Notes. 

CONTRACTS. 

A  contract  is  an  agreement  between  two  or  more 
competent  persons  for  a  sufficient  consideration  to  do 
or  not  to  do  a  given  thing. 

It  is  express,  if  put  in  express  words,  and  implied, 
if  something;  is  done  without  a  bargain  when  the  law 
implies  one. 

The  essentials  are  :  Sufficient  age  and  capacity  of 
parties;  freedom  of  will,  and  a  free  exercise  of  that 
will.  Each  must  possess  faculties  to  understand  and 
comprehend  their  acts.  The  parties  must  be  compe- 
tent. The  contract  must  be  lawful.  The  considera- 
tion must  be  good  or  valuable.  There  must  be  a  full 
assent,  all  minds  meeting  at  once  on  the  same  thing. 
Once  made  in  writing,  parties  are  concluded  by  it. 
But  surrounding  circumstances  may  be  shown.  La- 
tent ambiguity  may  be  explained.  Experts  may  tes- 
tify as  to  terms  in  trades  and  scientific  matters.  Con- 
tracts to  pay  the  debt  of  another,  to  sell  land,  to  lease 
land  over  a  year,  to  sell  goods  over  fifty  dollars  in 
value — unless  delivered — should  be  in  writing,  signed 


RIGHTS    AND    REMEDIES.  107 

and  delivered,  otherwise  void  under  statute  of  frauds. 

DAMAGES 

Are  given  as  compensation  to  plaintiff  for  any  injury 
caused  by  defendant  or  his  servant.  The  damages 
should  make  whole  the  injured  party,  so  far  as  can  be, 
in  money.  They  must  be  the  result  of  the  injury, 
and  such  as  flow  naturally  from  it.  They  must  arise 
without  fault  of  plaintiff.  If  from  a  railroad  injury, 
he  must,  on  crossing  the  track,  "  look  and  listen," 
-and  guard  himself  from  accident.  The  least  contribu- 
tory negligence  may  excuse  defendant.  But  where  de- 
fendant used  old  and  defective  boilers  and  dangerous 
machinery,  he  was  held  liable.  The  general  damages 
arise  from  breach  of  civil  contracts,  building,  jobbing, 
etc.,  also  from  breach  of  promise;  from  seduction-, 
from  wounds  and  bruises  in  forced  quarrels,  from  run- 
away teams,  collisions,  and  the  like.  The  greatest 
money  damages  come  from  injuries  to  passengers  by 
rail.  In  an  elevated  railway  case  in  New  York  $30,- 
000  was  recovered;  $45,000  was  collected  from  the 
Grand  Trunk  Road  by  Field,  Lighter  &  Co.'s  sales- 
man. Policies  of  tire  insurance  are  fruitful  source-  of 
suits,  and  in  general  great  care  and  labor  are  used  in 
showing  plaintiff  without  fault,  and  defendant  negli- 
gent. No  class  of  law  practice  pays  as  well  generally 
as  these  accident  cases. 

EJECTMENT    AND    EVIDENCE. 

Plaintiff  must  show  that  he  owned  the  legal  title  to 
the  estate  at  the  time  of  making  and  rilimr  the  declar- 


198  TRIAL    PRACTICE. 

atioii.  That  he  hud  the  right  of  possession,  while  de- 
fendant was  in  possession.  The  party  is  not  permitted 
to  dispute  the  title  of  whom  he  obtained.  The 
strength  of  plaintiff's  title,  and  not  weakness  of  de- 
fense, is  the  issue. 

EVIDENCE. 

Faith  in  human  testimony  is  sanctioned  by  experi- 
ence. It  is  all  the  means  by  which  an  alleged  matter 
is  proved  or  denied. 

Four  rules  govern  the  production  of  evidence  : 

1.  It  must  correspond  with  the  allegations  and  be' 
confined  to  the  point  in  issue. 

2.  The  substance  only  need  be  proved. 

3.  The  best  evidence  of  which  the  case  in  its  nature 
is  susceptible,  must  be  produced. 

4.  The  burden  of  proof  is  upon  the  party  holding 
the  affirmative. 

It  is  conclusive,  if  certain  —  as  by  statute  of  limi- 
tations. It  is  uncertain,  when  the  conclusion  does  not 
necessarily  follow.  It  is  circumstantial,  wrhere  it  is 
inferred  from  facts  satisfactorily  proved.  It  is  posi- 
tive, when  eye-witnesses  are  uncontradicted,  or  de- 
fendant confesses.  It  is  hearsay,  when  one  to  be 
charged  has  admitted  facts  to  be  established.  Matters 
of  public  interest,  statutes,  ancient  possessions,  dying 
declarations,  admissions  against  the  interest  of  party 
making  them,  and  any  admissions  brought  out  in  his 
presence  and  assented  to  by  him,  are  admissible. 

In  criminal  cases,  admissions  alone  are  not  of  late 
held    sufficient  without    searching  inquiry  as  to  their 


RIGHTS    AND    REMEDIES.  199 

good  motive.  Admissions  acted  upon  are  sufficient. 
Acts  done  that  would  warrant  a  presumption  of  assent 
are  admissible.  The  real  question  in  trials  of  fact  is 
not  whether  it  is  possible  that  the  testimony  may  be 
false,  but  whether  there  is  sufficient  probability  of  its 
truth  shown  by  competent  testimony  as  to  remove  rea- 
sonable doubts  ! 

Oral  evidence  cannot  replace  written  when  an  instru- 
ment can  be  produced  in  writing  where  it  was  once 
committed  to  paper.  But  lost  and  destroyed  contracts 
may  be  proven  by  parol.  So,  such  as  have  been  left 
with  the  other  party,  who  suppresses  them  after  no- 
tice to  produce,  etc.  All  material  writing  should  be 
produced  if  known  to  exist.  Facts  showing  that  writ- 
ings were  made  and  witnessed  can  be  shown  by  parol. 
Admissions  that  the  law  does  not  allow  denied,  are  all 
estoppel. — Greenleaf. 

FRAUD 

Is  a  trick  by  which  one  is  drawn  to  do  acts  to  his 
prejudice.  It  avoids  all  contracts.  It  is  not  to  be 
presumed.  It  must  be  proven  with  great  certainty. 
The  burden  is  on  the  one  who  charges  it.  It  is  always 
a  question  of  fact  for  a  jury.  Suspicions  are  not  evi- 
dences of  fraud.  It  must  be  as  to  material  matters  and 
effect  the  essence  of  the  contract.  If  it  is  such  that 
had  it  not  been  practiced  the  contract  would  not  have 
been  made,  then  it  is  material. 

It  must  work  an  actual  injury.  The  injured  party 
must  have  relied  upon  it.  As  in  case  of  false  pre- 
tenses, it  is  not   enough  that  the   statement  and  pre- 


200  TRIAL    PRACTICE. 

tenses  were  false  ;  they  must  have  been  the  means  of 
deceiving  the  injured  party — not  one  means,  but  the 
means. 

Party  defrauded  must  act  at  once,  and  not  sleep  on 
his  rights.  He  must  return  property  if  cheated  in  a 
trade.  Deed  back,  if  deceived  in  land.  Set  his  op- 
ponent where  he  found  him  at  earliest  opportunity. 
No  man  shall  found  a  right  upon  his  own  wrong. 
Equity  usually  steps  in,  and  does  that  which  the  law 
fails  to  do  in  matters  of  fraud. 

GENERAL    AGENCY. 

An  agent  is  one  who  is  authorized  to  act  for  another. 
It  is  authority  that  he  is  employed  by  another,  and 
does  acts  which  are  ratified.  If  limited,  one  must 
act  within  the  scope  of  his  authority.  General  agents 
will  bind  their  principal  so  long  as  they  have  general 
authority,  but  not  in  matters  of  deeding  property 
without  express  authority  that  may  be  recorded.  The 
main  rule  is  that  he  who  acts  by  his  agent  acts  by  him- 
self for  that  part  only  where  he  was  employed. 

He  should  disclose  the  name  of  his  principal ;  that 
he  acted  in  his  behalf ;  the  extent  of  his  authority. 
The  act  of  partners  are  frequently  such  as  principal 
and  agent.  So,  it  becomes  the  duty  of  a  firm  at  once 
upon  dissolution  to  publish  to  the  world  generally,  and 
send  special  notices  to  all  who  have  actually  dealt 
with  their  firm,  of  the  change,  else  they  are  each  and 
all  holden  for  new  debts  contracted,  as  each  partner  is 
deemed  agent  for  the  rest  in  the  line  of  their  copart- 
nership. 


RIGHTS    AND    REMEDIES.  201 

HOMICIDE. 

The  simple  killing  of  a  human  being — justifiable 
when  done  by  an  officer  in  discharge  of  his  duty,  or 
where  one  resists  him  when  arrested. 

Excusable  when  one,  in  a  lawful  act,  kills  another 
by  accident  or  in  self-defense.  Felonious  if  done  with 
evil  intent;  manslaughter  if  killing  is  in  a  quarrel,  in 
sudden  heat  of  passion  ;  murder  if  done  with  malice 
or  deliberate  purpose  to  kill,  other  than  in  self-defense 
or  defense  of  one's  helpless  wife,  child,  father,  mother, 
or  prevent  a  strong  man  from  killing  a  weak  child  or 
woman. 

In  manslaughter,  the  fatal  stroke  must  be  given 
before  passions  could  cool,  else  it  it  is  murder.  Proof 
of  great  provocation  must  be  shown  to  excuse  the  use 
of  deadly  weapons. 

In  trials  of  either  of  these  offenses,  death  must  first 
be  established,  and  how  it  resulted,  then  who  could 
have  caused  it,  and  if  sufficient  motive,  malice  may  be 
implied,  as  if  one  intending  to  kill  one  person  actually 
kills  another,  this  would  be  murder.  In  self-defense 
the  attacked  may  use  his  judgment ;  he  alone  is  judge. 
People  v.  Hurd.  The  proof  of  deliberate  murder  is 
generally  difficult  ;  of  manslaugher  quite  easy ;  of 
killing  in  self-defense  generally  still  more  easy.  In  all 
high  crimes  there  is  more  concealment.  Poisoning  is  the 
worst  kind  of  murder,  and  very  secretly  accomplished. 

FORGERY. 

Forgery  is  often  committed  by  an  alleged  color 
of   authority.      The    unlawful    making    or    uttering  a 


202  TRIAL    PRACTICE. 

writing,  to  the  prejudice  of  another,  must  be  shown 
to  be  unlawful.  In  larceny,  the  value,  ownership  and 
and  taking  by  force  from  another,  usually  covers  all 
questions,  while  in  murder  it  may  be  required  to  trace 
motives  for  a  year  or  more  to. find  a  malicious  cause. 

LIBEL    AND    SLANDER. 

A  prima  facie  case  of  slander  or  libel  is  simple.  The 
latter  is  ridiculing  by  picture,  writing  or  printing,  made 
with  intent  to  injure  another,  and  if  false  and  does  in- 
jure another,  even  if  copied  from  another  paper,  it  is 
libel.  So  slander,  if  false,  puts  defendant  upon  his 
proof  of  excuse.  These  cases  are  simple  for  plaintiff 
and  difficult  for  defendant.  Perjury  is  difficult  to 
prove.  It  needs  two  witnesses,  that  some  one  has 
been  perjured  by  the  false  swearing  in  a  judicial  pro- 
ceeding, on  a  material  matter.  The  essentials  of  proof 
in  rape  is  forcible  carnal  knowledge  of  a  chaste 
person. 

RORRERY. 

Eobbery  must  show  forcible  taking  of  another's 
property,  with  intent  to  convert  it ;  and  goods  must 
be  proven  actually  in  the  robber's  possession,  and 
actually  taken  from  the  person  of  the  other  by  superior 
strength,  or  putting  in  fear,  so  that  owner  could  not 
safely  retain  them.  To  part  with  them  lawfully  may 
change  the  action  to  trover.- 

These  principles  are  from  Bishop,  who  lays  down 
the  general  rules  by  which  indictments  are  framed,  as 
follows  :    It  must  allege  what  in  Uxav  is  essential  to  the 


RIGHTS    AND    REMEDIES.  2()o 

punishment  sought  to  be  inflicted  ;  must  inform  of 
time,  place  and  offense  ;  how  committed,  and  extent 
of  the  crime  ;  must  refer  to  statute  as  violated  ;  statute 
must  be  in  force,  etc. 

If  offense  charged  is  "  from  a  dwelling  house,"  or 
"  from  a  store  in  the  day  time,"  the  proof  must  corre- 
spond in  each  essential  part.  Acts  are  measured  by 
intent  or  result.  The  law  does  not  concern  itself  with 
trifles.  Where  "breaking"  is  charged,  opening  a 
door  is  sufficient.  Every  man  is  responsible  for  what 
follows  from  his  unlawful  acts  ;  but  no  action  can  be 
criminal  where  it  is  impossible  for  one  to  do  otherwise. 
What  a  wife  does  of  a  criminal  nature  with  her  hus- 
band, is  presumed  to  be  directed  by  him. 

INDORSEMENT. 

An  indorser  makes  these  conditions  :  That  all  names 
before  his  are  genuine.  That  the  note  or  bill  shall  be 
paid  when  due  ;  that  if  not,  he  will  personally  pay  it. 
Delivery  without  indorsement  is  insufficient,  if  payable 
to  order.  The  payee  may  stop  negotiability  of  a 
special  indorsement.  The  release  of  prior  indorser  dis- 
charges all  subsequent  indorsers. 

Great  care  must  be  taken  in  protests  ;  on  them 
delicate  legal  questions  arise,  too  numerous  for  this 
section. 

LIQUIDATED. 

Where  damages  are  uncertain,  and  where  settle- 
ments are  presumed,  where  some  valid  consideration 
has  passed  and  full  receipts  are  given,  the  law  will. 


204  TRIAL    PRACTICE. 

favor  the  settlements,  as  it  is  a  well  known  maxim, 
■"  there  must  be  an  end  of  litigation." 

If  one  hires  for  a  fixed  period,  and  serves  only  part, 
and  is  prevented,  he  can  recover  for  whole  period,  pro- 
vided he  was  unable  to  secure  employment.  Warranty 
of  goods  is  implied,  and  damages  arise  if  not  as  rep- 
resented. 

MISCELLANEOUS. 

A  father  may  have  custody  of  a  child  in  preference 
to  any  one  else,  except :  If  he  be  cruel,  and  not  a  com- 
petent person  to  care  for  a  child  ;  if  the  mother  be 
living,  and  desires  the  custody  of  the  child  of  tender 
years  ;  if  the  father  neglects  to  support  the  child.  In 
these  cases  the  court  or  probate  judge  may  bind  out 
the  child  to  a  suitable  person  who  guarantees  to  sup- 
port it. 

It  is  not  larceny  to  take  ones  own  property  where 
he  may  find  it..  A  husband  cannot  sell  his  wife's 
goods.  In  many  States  he  cannot  sell  his  own  real 
property  without  her  assent,  and  she  can  sell  all  of  her 
property  in  his  absence.  The  wife  is  agent  for  her 
husband.  Principal  and  agent  extends  to  all  of  her 
purchases  of  clothing,  furniture,  household  goods 
and  natural  living  expenses,  and  there  is  no  power 
but  .by  separation  and  notice  to  prevent  her  making 
contracts  binding  on  her  husband  for  her  neces- 
saries. So  also  a  child  .can  bind  its  father  for 
usual  wearing  apparel  and  living  expenses,  so  long 
as  it  remains  with  its  parents,  and  is  suited  to  his 
circumstances. 


EIGHTS   AND    REMEDIES.  205 

PARTNERSHIP. 

A  contract  between  two  or  more  persons  to  combine 
skill  and  capital  for  a  lawful  purpose,  the  losses  and 
profits  of  which  shall  be  shared  by  each  in  certain  pro- 
portions, is  a  partnership.  It  must  be  a  common  in- 
terest in  stock  of  company.  It  must  be  a  personal 
responsibility  for  the  firm  debts — a  business  marriage. 

There  must  be  community  of  profits  ;  each  member 
liable  to  the  whole  debt  without  reference  to  their  pri- 
vate contracts.  Partners  are  joint  tenants  and  general 
agents  of  each  other.  If  money  be  invested  in  com- 
pany lands,  they  belong  in  common  to  all.  If  one  buy 
firm  lands  with  firm  money,  taking  title  in  himself,  he 
is  the  legal  trustee  of  the  title,  but  not  the  actual 
owner. 

The  act  of  each  partner  binds  all  within  the  scope  of 
their  business.  Partners  who  steal  from  each  other 
do  not  commit  larceny  as  known  in  law  —  they  being 
part  owners,  cannot  steal  from  their  own. 

Partners  may  by  acts,  signs  and  dealings,  be  held 
out  as  such,  and  bound  after  dissolution.  One  may 
dissolve  any  moment,  and  be  liable  in  damages  for 
breach  of  contract.  They  may  be  dissolved  by  death 
of  either  partner,  by  bankruptcy,  insanity,  limitation 
or  judicial  decree.  If  they  have  made  debts,  each  is 
liable  till  all  is  paid. — 3  Kent. 

REAL    ACTIONS. 

An  action  will  arise  for  permanent  improvement, 
made  in  o;ood  faith  by  a  farmer  in  the  wav  of  clearinor 


206  TRIAL    PRACTICE. 

and  of  a  householder  in  buildings  that  can  be  removed 
without  injury  to  premises,  if  built  in  the  line  of  busi- 
ness, like  engines,  boilers  and  temporary  buildings, 
connected  with  mills  and  bakerys.  But  in  general,  one 
must  improve  premises  at  his  own  peril.  Where  store 
counters  can  be  taken  without  injury,  or  partitions  re- 
moved without  damage  to  premises,  they  are  usually 
taken.  Crops  sown  in  peace,  are  to  be  reaped  in 
peace.  Growing  grain,  unless  specified,  goes  with  the 
farm,  but  cut  timber,  lumber,  rails  not  in  fence,  wheat 
in  the  stack  and  detached  property,  goes  as  personalty. 
The  principal  real  actions  are  trespass  and  ejectment, 
-each  treated  of  separately. 

PERSONAL    PROPERTY. 

Right  to  property  originally  came  from  occupancy. 
The  possessor  can  give  no  better  title  than  he  has.  The 
descent  and  transfer  of  property  are  creatures  of  law, 
and  not  natural  rights  ;  but  the  right  of  children  can 
take  property  in  preference  to  strangers,  is  founded  on 
the  law  of  nature.  Every  person  must  so  use  his  prop- 
erty as  not  to  injure  his  neighbor.  The  term  chattels 
covers  all  kinds  of  personal  property. 

Personal  property  is  such  as  bonds,  money,  furni- 
ture, fixtures,  grain,  goods,  tools,  implements,  etc.,  and 
passes  title  generally  by  delivery.  It  may  be  acquired 
by  purchase,  descent,  gift,  or  by  act  of  law ;  usually 
it  is  from  purchase,  where  the  buyer  has  full  and  abso- 
lute power  to  use,  sell,  burn  or  exchange  it  at  pleasure, 
provided  he  has  the  absolute  title  to  it.  All  parol  gifts 
(those  made  without   writing)  pass  title  only  on  de- 


RIGHTS    AND    REMEDIES.  207 

livery,  and  even  then  they  are  presumed  to  be  void  if 
made  to  strangers  without  consideration.  It  is  a  good 
consideration  for  relatives  to  give  valuables  to  each 
other,  and  such  as  near  kinsmen.  A  valuable  consid- 
eration is  money  or  other  property  in  exchange. 

SALES. 

A  sale  or  "contract  to  transfer  property  from  one  to 
another,  for  a  valuable  consideration,"  requires  com- 
petent parties,  subject  matter  consideration.  The 
thing  sold  must  exist  ;  must  be  identified  and  capable 
of  delivery.  The  seller  must  have  control  and  right  to 
sell  it,  and  by  the  sale  he  warrants  the  title. 

Each  party  is  bound  to  state  to  the  other  material 
facts  that  he  knows  the  other  to  be  ignorant  of,  and 
out  of  his  observation.  The  seller  may  permit  the 
buyer  to  cheat  himself,  but  must  in  no  way  aid  in  the 
cheating.  In  sales  at  auction,  any  bid  may  be  rejected 
before  the  hammer  falls.  The  auctioneer  has  a  lien  on 
sale  money  for  his  fees. 

STOPPAGE    IN    TRANSITU. 

The  seller  may  recall  goods  at  any  time  before  final 
delivery,  if  buyer  becomes  insolvent,  or  if  fraud  has 
been  committed,  especially  if  goods  are  bought  after 
failure  for  purposes  of  fraud.  So  buyers  may  notify 
sellers  of  insolvency,  and  refuse  to  accept  their  goods  ; 
but  once  freely  delivered,  the  sale  cannot  be  rescinded  ; 
it  is  final,  and  each  has  his  separate  rights  thereafter, 
the  purchaser  his  goods,  the  seller  his  credit. 


208  TRIAL    PRACTICE. 


TENDER. 


To  support  the  plea  of  tender,  one  must  show  the 
precise  sum  offered  and  shown  unlawful  money  —  not 
check  or  draft.  The  money  itself  may  tempt  one  to 
accept  it.  He  must  also  show  that  he  has  since  been 
ever  ready  and  willing  to  pay  the  sum  he  claims  to  be 
owing  plaintiff.  It  must  be  produced  on  demand,  and 
once  in  sight  without  demand.  With  these  requisites, 
all  costs  made  after  the  tender  are  payable  by  plain- 
tiff, he  having  supposed  to  be  in  law  needlessly  in- 
curred. 

TROVER. 

For  the  wrongful  conversion  of  personal  property, 
goods,  chattels  or  money  ;  must  be  shown  that  plaintiff 
owned  it ;  that  it  came  to  possession  of  defendant ;  that 
he  converted  it.  An  agent  may  maintain  trover. 
Absolute  control  is  a  right  to  maintain  this  action. 
Selling,  destroying  and  concealing  is  appropriating  in 
the  meaning  of  the  statute.  A  count  for  trover  is 
usually  added  to  trespass  on  the  case. 

AVILLS. 

The  law  of  actual  residence  governs  the  location  of 
probating  wills.  But  they  may  be  admitted  where  one 
dies  in  a  foreign  state,  and  has  property  therein. 

In  regard  to  wills  of  real  property,  it  is  clear  that 
the  law  of  place  where  it  is  situated,  is  where  the  will 
must  be  generally  probated,  or  copies  of  the  will  filed 


RIGHTS    AND    REMEDIES.  209 

to  perfect  the  chain  of  title.  Usually  wills  are  pro- 
bated where  the  decedent  resided. 

A  prima  facie  case  is  made  by  showing  the  actual 
signature  ;  the  capacity  to  comprehend  the  business  in 
which  he  was  engaged  ;  the  witnesses  ;  only  one  need 
be  sworn.  Testator's  mark  is  sufficient  if  unable  to 
sign.  He  may  revoke  it  by  subsequent  wills  ;  he  may 
keep  it  or  file  with  probate  court ;  he  can  always  de- 
stroy it  ;  his  marriage  and  subsequent  issue  will  change 
its  validity. 

Wills  should  be  simple,  direct,  and  clearly  convey 
the  estate,  naming  at  least  each  heir,  but  one  can  dis- 
pose of  all  his  property  save  the  wife's  dower  interest, 
even  if  it  deprives  some  of  his  bounty.  He  is  in  control 
of  it,  and  may  select  the  objects  of  his  bequests  with- 
out interference.  Two  witnesses  are  necessary.  Certain 
words  like,  I  give,  grant,  devise  and  bequeath,  should 
be  remembered,  and  a  plain  business  like  statement 
will  usually  do  the  disposing  of  the  property  best. 

If  made  by  threats,  duress,  undue  flattery,  over  per- 
suasion, not  in  sound  mind,  under  undue  influence,  it 
may  be  set  aside  by  a  jury.  Any  means  that  destroys 
a  free  agencw,  is  contrary  to  the  spirit  of  the  law  gov- 
erning: the  validity  of  wills. 


(14) 


210  TRIAL    PRACTICE. 


CHAPTER  XIX. 


ORATORS  AND  ORATORY, 


The  intense  aversion  that  all  good  lawyers  have  for 
affectation,  is,  in  a  measnre,  a  hinderance  to  the  study 
of  oratory.  Many  fear  that  they  may  acquire  a  stilted 
habit  of  delivery.  But  surprising  as  it  may  sound,  the 
one  thing  most  neglected  in  law  schools,  is  the  subject 
of  delivery,  or  the  art  of  speaking  in  a  tone  and  man- 
ner easily  understood,  by  a  court  and  jury. 

The  high  pitched  key  of  loud  talkers,  and  inaudible 
voices  of  others,  fall  on  the  ear  like  the  prattle  of  the 
street  vendor,  and  never  leave  the  listener  room  to 
comprehend  the  subject,  if  he  cared  to  follow  the 
reasoner.  Men  are  not  moved  and  converted  by  such 
repulsive  utterances.  The  music  of  modulation  is  a 
great  essential  in  speaking,  as  men  never  quarrel  in  the 
hearing  of  sweet  sounds,  so  with  pleasing  speeches, 
they  steal  in  on  the  senses,  and  capture  the  judgment. 
They  compel  attention.  They  win  juries,  command 
verdicts,  and  secure  large  retainers. 

Such  is  the  power  of  eloquent  speech,  that  trained 
and  modulated,  with  some  apt  words  to  utter,  it  will 
quell  a  mob,  nerve  an  army,  rouse  an  audience,  move 
an  assemblage,  and  often  change  the  destiny  of  nations. 


ORATORS  AND  ORATORY.  211 

The  same  words  spoken  without  a  forcible  and  apt  de- 
livery, would  be  lost  on  the  listener,  or  fall,  as  Gough 
.  puts  it,  "  like  stones  in  the  mud,  to  sink  and  disappear 
forever." 

No  man  ever  believed  more  in  the  power  of  well 
chosen  sentences,  and  their  right  delivery,  than  Web- 
ster, the  greatest  model  of  American  advocates.  He 
was  often  absorbed  in  the  stud}'  of  forcible  sayings  for 
•days  before  his  greatest  speeches,  and  never  made  an 
important  effort  unprepared.  He  would  commit  to 
memory,  and  carry  illustrations,  ten  and  fifteen  years 
before  using  them.  He  was  indebted  to  Dry  den  for 
his  "  raising  mortals  to  the  skies,  and  drawing  angels 
•down."  He  owed  much  to  Scott  for  his  "  sea  of  up- 
turned faces;"  much  to  the  Scriptures  for  his  sub- 
limity, and  many  strong  sentences  to  Shakespeare,  but 
he  owed  most  of  all  to  his  wonderful  delivery!  In  reply 
to  Hayne  he  drew  on  all  his  resources. 

At  the  dedication  of  Bunker  Hill  Monument,  the 
crowd  pressed  hard  upon  thq  speaker's  platform.  The 
police  were  powerless  to  restrain  them.  In  vain  the 
master  of  ceremonies  urged  them  to  be  quiet.  It  was 
a  supreme  moment  just  before  Mr.  Webster  was  to  be 
introduced  as  the  orator.  All  were  anxious  to  hear  his 
earliest  utterances,  but  confusion  became  intense.  The 
chairman  begged  ]yfr.  Webster  to  sav  a  few  words  to 
restore  order.  The  great  man  came  forward  in  his 
majestic  way,  and  said  :  "Gentlemen,  you  must  fall 
back  !"  "Mr.  Webster,  it  is  impossible  !"  "It  is  im- 
possible !"  shouted  many  voices  in  unison,  liaising 
Jhis  arm  and  his  voice,  as  his  burning  eyes  flashed  over 
ihe  excited   multitude  before  him,,  he  said  with  Wel>- 


212  TRIAL    PRACTICE. 

sterian  emphasis  :  "  Gentlemen,  nothing  is  impossible 
to  Americam  at  Bunker  Hill! "  A  sjreat  shout  ransr 
through  the  audience  as  they  surged  back  like  the 
waves  of  the  ocean.  This  was  what  Webster  would 
call  something  higher  than  eloquence  —  action,  noble, 
sublime,  God-like  action. 

Carlyle  says  :  "Let  him  who  would  be  moved  to 
convince  others,  be  first  moved  to  convince  himself," 
and  adds  :  "  The  race  of  life  has  become  intense  ;  the 
runners  are  treading  on  each  other's  heels  ;  woe  be  to 
him  who  stops  to  tie  his  shoestrings." 

While  we  may  abhor  the  mimic  style  of  elocution) 
as  sometimes  taught  by  ranting  readers  of  worn  out 
themes,  a  well  delivered  speech,  or  play,  is  a  rare 
pleasure  ;  and  there  is  no  greater  luxury  on  earth,  than 
that  experienced  by  accomplished  singers,  speakers  and 
actors  before  an  appreciative  audience. 

To  acquire  that  ease  and  pleasant  delivery,  and  know 
its  value,  is  a  work  of  time  and  patience  ;  but  I  prefer 
to  speak  of  it  through  men  of  larger  experience,  whose 
apt  words  are  quoted,  instead  of  personal  counsel. 
These  masters  of  their  science  speak  with  unquestioned 
authority.  It  goes  without  saying  that  American 
statesmen,  notably  the  late  President  Garfield,  first  ac- 
quired eminence  by  their  oratory. 

Cicero  says:  "  Delivery  has  the  sole  and  supreme 
power  of  oratory.  Without  it  a  speaker  of  the  greatest 
mental  power  cannot  be  held  in  any  esteem,  while  with 
it,  one  of  moderate  ability  may  surpass  those  of  the 
greatest  talent."  Quintillion  says  :  "  Indifferent  dis- 
course well  delivered,  is  better  received  by  a  popular 
audience,  than  a  good  discourse  badly  delivered.    It  is 


ORATORS  AND  ORATORY.  213 

not  so  important  what  our  thoughts  are,  as  in  what 
manner  they  are  delivered,  since  those  whom  we 
address  are  moved  only  as  they  hear."  Humboldt 
says  :  "  The  essence  of  language  lies  in  the  living  utter- 
ance. It  is  only  by  the  spoken  word  that  the  speaker 
breathe-  his  soul  into  the  souls  of  his  hearers."  Sar- 
gent S.  Prentiss,  of  whom  S.  S.  Cox  says  :  "  No  man, 
south  or  north,  ever  left  a  liner  reputation  for  elo- 
quence," in  a  letter  to  his  brother,  dated  Yicksburg, 
August  9,  1833,  writes:  "  Let  me  particularly  recom- 
mend to  you  to  cultivate  as  much  as  possible  your 
powers  of  elocution.  This  attainment  is  to  every  man 
of  the  utmost  importance.  It  is  no  less  than  the  power, 
of  using  his  other  attainments,  for  what  advantage  is 
information  unless  one  is.  allowed  to  convey  it,  and  show 
the  world  one  possesses  it.  Indeed,  my  observation 
of  mankind  has  convinced  me  that  success  in  life  de- 
pends not  upon  the  quantity  of  knowledge  a  man  pos- 
sesses, :i-  upon  the  skill  and  facility  with  which  he  is 
able  to  bring  it  to  bear  upon  the  affairs  in  which  he 
may  be  engaged. 

"  This  is  particularly  true  with  great  men.  Their 
greatness  consists  less  in  the  extent  of  their  knowl- 
edge, than  in  the  way  in  which  they  use  it.  There  arc- 
hundreds,  perhaps  thousands,  of  men  in  the  United 
State-  who  exceed  Henry  Clay  in' information  on  all 
subjects,  but  his  superiority  consists  in  the  power  and 
adroitness  with  which  lie  uses  his  information. 

"  I  would  again  press,  before  any  other  acquisition, 
necessity  of  training.  What  young  man,  having  merely 
a  fondness  for  painting,  and  a  corresponding  desire  to 
paint,   would   dare  to  take  up  brush  and  palette,  and 


214  TRIAL    PRACTICE. 

expect  his  first  ignorant  daubs  to  be  accepted  by  the 
Academy  ?  What  young  woman  without  training  would 
dare  to  sing  before  a  public  audience  of  cultivated  peo- 
ple? What  merely  sub-architect  would  expect  to  have 
his  random  plans  accepted,  even  for  a  State  capitol? 
Every  one  understands  the  necessity  of  thorough  tech- 
nical education  in  these  arts  ;  but  when  you  come  to 
elocution,  the  highest  of  all  arts,  there  is  a  general  im- 
pression that  the  mere  desire  to  do  something  indicates 
the  power  to  do  it.  Art  in  elocution  is  the  purest 
appropriate  expression  of  thought,  therefore  no  man 
who  desires  to  use  his  mind  can  afford  to  dispense  with 
•the  knowledge  of  its  simplest  and  most  apparent  laws. 
And  there  can  be  no  great  success  without  severe  tech- 
nical study." 

Professor  Win.  Matthews  says:  "Let  men  once 
learn  and  deeply  feel  that  no  man  ever  has  been,  or 
ever  can  be,  a  true  orator  without  a  long  and  severe 
apprenticeship  to  the  art ;  that  it  not  only  demands- 
constant,  daily  practice  in  speaking  and  reading,  but  a 
sedulous  culture  of  the  memory,  the  judgment,  and  the 
fancy  —  a  ceaseless  storing  of  the  cells  of  the  brain 
with  the  treasures  of  literature,  history,  and  science 
for  its  use,  and  they  will  shrink  from  haranguing  their 
fellow-men,  except  after  a  careful  training  and  the 
most  conscientious  preparation." 

Henry  Ward  Beecher  says  :  "  While  progress  has- 
been  made,  and  is  making,  in  the  training  of  men  for 
public  speaking,  I  think  I  might  say  that  relative  to 
the  exertions  that  are  put  forth  in  other  departments 
of  education,  this  subject  is  behind  all  others.  Train- 
ing in  this  department  is  the  great  want  of  our  day,  for 


ORATORS  AND  ORATORY.  215 

we  are  living  in  a  land  whose  genius,  whose  history, 
whose  institutions,  whose  people,  demand  oratory.  I 
advocate,  therefore,  in  its  full  extent,  and  for  every 
reason  of  humanity,  of  patriotism,  and  of  religion,  a 
more  thorough  culture  of  oratory. 

"Now  in  regard  to  the  training  of  the  orator,  it 
should  be  a  part  and  parcel  of  the  school.  The  first 
work  is  to  teach  a  man's  body  to  serve  his  soul.  So 
long  as  men  are  in  the  body  they  need  the  body ;  and 
one  of  the  very  first  steps  in  oratory  is  that  which 
trains  the  body  to  be  the  welcome  and  glad  servant  of 
the  soul.  Grace,  posture,  force  of  manner,  the  train- 
ing of  the  eye  that  it  may  look  at  men,  and  pierce 
them,  and  smile  upon  them,  and  bring  summer  to 
them,  and  call  down  storms  and  winter  upon  them  ;  the 
development  of  the  hand,  that  it  may  wield  the  scep- 
ter or  beckon  with  sweet  persuasion  ;  these  themes 
belong  to  man.  And,  among  other  things,  the  voice — 
perhaps  the  most  important  of  all,  and  the  least  cul- 
tured. 

"  How  many  men  are  there  who  can  speak  from 
day  to  day,  one  hour,  two  hours,  three  hours,  without 
exhaustion  and  without  hoarseness?  But  it  is  in  the 
power  of  the  vocal  organs,  and  of  the  ordinary  vocal 
organs,  to  do  this.  What  multitudes  of  men  there  are 
who  weary  themselves  out  because  they  put  their  voice 
on  a  hard  run  at  the  top  of  its  compass,  and  there  is 
no  relief  to  them,  and  none  unfortunately  to  the  audi- 
ence. But  the  voice  is  like  an  orchestra.  It  ranges 
high  up  and  can  shriek  betimes  like  the  scream  of  an 
eagle  ;  or  it  is  low  as  the  lion's  tone  ;  and  at  every  in- 
termediate point  is  some  peculiar  quality.      It  has  in  it 


216  TRIAL    PRACTICE.- 

the  mother's  whisper  and  the  father's  command.  It 
has  in  it  warning  and  alarm.  It  has  in  it  sweetness. 
It  is  full  of  mirth  and  full  of  gayety.  It  glitters, 
though  it  is  not  seen  with  all  its  sparkling  fancies.  It 
ranges  high,  intermediate,  or  low,  in  obedience  to  the 
will,  unconscious  to  him  who  uses  it  ;  and  men  listen 
through  the  long  hour  wondering  that  it  is  so  short, 
and  quite  unaware  that  they  have  been  bewitched  out 
of  their  weariness  by  the  charm  of  a  voice,  not  artifi- 
cial, but  by  assiduous  training  made  to  be  his  second 
nature.  Such  a  voice  answers  to  the  soul,  and  it  is  its 
beating. 

"'But,'  it  is  said,  'does  not  the  voice  come  by 
nature?'  Yes;  but  is  there  anything  that  'comes 
by  nature  '  that  stays  as  it  comes  if  it  is  worthily 
handled?  There  is  no  one  thing  in  man  that  he  has  in 
perfection  till  he  has  it  by  culture.  We  know  that  in 
respect  to  everything  but  the  voice.  Is  not  the  ear 
trained  to  hearing?  Is  not  the  eye  trained  to  seeing? 
Is  a  man  because  he  has  learned  a  trade,  and  was  not 
born  with  it,  less  a  man?  Is  the  school  of  human 
training  to  be  disdained  when  by  it  we  are  rendered 
more  useful  to  our  fellow-men? 

"  But  it  is  said  that  this  culture  is  artificial ;  that  it 
is  simply  ornamentation.  Ah  !  that  is  not  because 
there  has  been  so  much  of  it,  but  because  there  has 
been  so  little  of  it.  If  a  man  were  to  begin,  as  he 
should,  early  :  or  if,  beginning  late,  he  were  to  address 
himself  assiduously  to  it,  then  the  graces  of  speech, 
the  graces  of  oratory,  would  be  to  him  what  all  learn- 
ing must  be  before  it  is  perfect,  namely  —  spontane- 
ous.    If  he  were  to  be  trained  earlier,  then  his  training 


ORATORS  AND  ORATORY.  217 

would  not  be  called  the  science  of  ostentation  or  act- 
ing. Not  until  human  nature  is  other  than  it  is  will 
the  function  of  the  living  voice,  the  greatest  force  on 
earth  among  men,  cease." 

It  sounds  so  old,  and  is  so  true,  to  say  of  the  first 
of  orators  that  he  spent  years  in  severe  training  ;  that 
he  endured  torture,  and  regarded  the  art  as  a  pleasant 
task,  and  a  valuable  science,  and  succeeded  in  over- 
coming deformity  of  voice  and  body,  and  won  at  last 
the  crown  of  gold  and  lasting  fame  as  a  reward  for  his 
energy.  It  sounds  so  very  strange  to  speak  of  Clay  as 
an  ardent  follower  of  this  Grecian  master,  and  Mar- 
shall as  another,  and  Prentiss  as  another,  each  almost 
their  master's  equal,  but  their  brilliancy  as  orators  re- 
warded their  years  of  training.  And  to-day,  in  the 
presence  of  Booth,  who  brings  all  nations  at  his  feet, 
by  purity  of  voice  and  grace  of  action,  there  arc  men 
enough  to  ridicule  attempts  to  cultivate  the  finer  qual- 
ities of  delivery. 

Men  are  not  wanting  who  see  in  the  scholarly  lan- 
guage and  majestic  delivery  of  Conkling  —  one  with 
mind  and  body  most  wonderfully  developed' — what  they 
please  to  term  too  much  of  the  imperial  for  an  Amer- 
ican. But  what  if  it  be  imperial,  and  is  really  finished  ? 
Is  not  the  body  a  part  of  the  Creator's  stamp,  and  the 
soul  within  it  simply  living  up  to  its  possibilities? 

Men  are  not  at  all  of  an  equal  mould.  They  arc  not 
even  created  equal.  Some  are  weak,  and  others 
strong ;  some  are  large,  and  others  little  ;  some  are 
students,  and  others  idlers  ;  some  look  over  the  stars 
to  other  worlds,  and  others  see  but  a  single  hamlet 
and  that  imperfectly. 


218  TRIAL    PRACTICE. 

That  an  orator  like  Butler  should  employ  the  strong 
and  logical,  while  one  like  Cox  reasons  through  his 
wit,  and  another  like  Matthews  commands  men  by  his 
dignity  and  eloquence,  and  many  more  possess  but 
a  tithe  of  their  acquirements  and  succeed,  is  only  an 
argument  by  contrast,  for  Butler,  Cox  and  Matthews, 
each  employ  their  best  forces,  and  forces  not  untrained 
or  neglected. 

I  sometimes  wish  that  I  could  paint  the  real  picture 
of  a  trained  orator  like  Beach,  as  I  heard  him  in  the 
Brinkley  case ;  a  likeness  of  his  flashing  eye,  his 
commanding  form,  and  features  all  ablaze  with  elo- 
quent looks,  and  voice  of  wonderful  melody ;  or  tell 
of  Choate's  swift  flights  of  fancy;  of  Everett's 
rhythmical  sentences  ;  of  Matthews  in  his  strongest 
power,  or  Storrs  in  some  closing  appeal ;  where  the 
form  surges  and  trembles  with  thoughts  too  fast  for 
utterance,  but  these  men  must  be  seen  to  be  appreci- 
ated, and  heard  to  be  understood. 

In  a  country  where  so  much  is  demanded  of  ora- 
tors, where  place  and  power  often  comes  to  the  elo- 
quent and  gifted,  enough  is  left  for  the  highest  order 
of  oratory  and  the  finest  finished  speeches  ;  no  one  need 
despair  of  a  lack  of  present  opportunity,  but  all  should 
be  ready  to  embrace  their  opportunity  when  it  offers, 
for  "  There  is  a  tide  in  the  affairs  of  men  which  taken 
at  the  flood  leads  on  to  fortune." 


MISTAKEN    IDENTITY.  2li>' 


CHAPTER  XX. 


MISTAKEN   IDENTITY. 


Cases  of  mistaken  identity  are  by  no  means  rare  in- 
large  cities,  and  many  are  reported  every  year.  Strange 
coincidences,  unhappy  results,  often  follow  in  the  heat 
of  some  startling  tragedy  or  robbery,  that  cooler  judg- 
ment would  never  believe  possible. 

The  facts  in  the  following  romantic  cases  are  abso- 
lutely vouched  for,  yet  seem  almost  incredible.  One 
of  the  latest  of  the  strange  cases  is  exceedingly  in- 
structive on  circumstantial  evidence,  and  the  last  one 
equally  strong  on  mistaken  identity. 

THE  AKEBTON  CASE 

Is  that  of  an  English  merchant  who,  in  1867,  was 
stabbed  on  a  busy  street  in  broad  daylight,  in  the  pres- 
ence of  twenty  witnesses,  and  the  young  offender 
escaped  without  arrest. 

The  best  detective  talent  of  London  was  employed, 
and  the  supposed  murderer  captured  in  Belgium  and 
brought  to  London  for  trial.  The  crown  was  ably 
represented,  and  only  a  poor  barrister  assigned  for  the 
defense. 


'220  TRIAL   PRACTICE. 

Great  interest  was  manifested  at  the  trial,  which 
developed  the*fact  that  Mr.  Pierson,  the  merchant,  had 
discharged  Lewis  Akerton  a  few  weeks  before  the  kill- 
ing, and  at  the  time  the  clerk  had  said:  "  You  will 
one  day  regret  this  injustice." 

Witness  after  witness  was  sworn  to  the  question  of 
killing,  and  the  identity  of  the  accused,  and  the  crown 
rested  with  great  confidence,  when  defendant's  counsel 
requested  the  court  to  allow  the  jury  to  retire  with 
the  crown  counsel,  himself  and  the  court,  under 
guard,  to  the  judge's  private  room,  which  request 
was  granted. 

Standing  in  the  middle  of  the  room  was  a  com- 
plete counterpart  of  the  prisoner.  He  was  of  the 
same  height,  build,  hair,  eyes,  features  and  complexion 
of  Akerton.  The  closest  scrutiny  of  the  two  men  re- 
vealed no  points  of  difference  in  face  or  form.  The 
jury  gazed  from  the  prisoner  to  his  double  in  bewilder- 
ment. No  one  spoke  for  several  moments  ;  then  the 
prisoner's  counsel  requested  that  the  jury  retire  while 
the  two  persons  changed  clothing  in  the  presence  of  the 
officers,  and  return  and  confront  the  witnesses  sep- 
arately, which  was  done,  and  each  firmly  declared  his 
certainty  of  belief  that  the  unaccused  equally  with 
the  accused,  was  the  guilty  party.  They  were  un- 
shaken by  cross-questions.  The  prisoner's  counsel 
then  moved  for  his  release  on  the  ground  of  a 
reasonable  doubt,  and  the  court  directed  a  verdict 
of  "  not  guilty,"  which  was  received  amid  applause. 
It  later  transpired  that  the  two  men  were  twin  brothers, 
and  one  was  the  real  clerk  discharged,  but  which  one 
no  jury  could  find  out. 


.MISTAKEN    IDENTITY.  221' 

IDENTITY    OF   SIGNATUKE. 

Ill  the  Probate  Court  of  Detroit  at  the  hearing  of 
the  Jones  Will  Case,  April,  1883,  L.  M.  Gates  of  Kal- 
amazoo, testified  that  the  signature  of  L.  M.  Gates, 
Edmonston  Otsego  County,  N.  Y.,  was  identical  with 
his  hand  writing,  except  the  residence  stated.  He  was 
requested  to  write  his  name  and  above  address,  and 
the  handwriting  was  identical  with  that  on  the  will. 

Hon.  Chas.  S.May  then  testified  to  the  L.  M. 'Gates 
signature  of  Edmonston,  X.  Y.,  who  was  an  entirely 
different  person,  and  no  relation,  in  fact  a  total 
stranger  to  Gates  of  Kalamazoo.  The  identity  of 
names  and  handwriting  was  here  the  most  complete 
ever  shown  in  a  suit  at  law. 

In  the  Cadet  AVhittaker  Case  the  testimony  was 
about  equally  divided  on  his  handwriting  of  the  self- 
threatening  letter,  and  in  the  Morey  —  Garfield  letter 
many  believed  at  first  in  its  genuineness,  so  that  the 
Pacific  States  were  deceived  by  it,  and  voted  against 
Garfield. 

In  Maclean  —  Scripps  Libel  Case,  tried  in  Superior 
Court  of  Detroit,  April,  1883,  a  famous  letter  known 
as  the  Brenton  letter  called  out  the  first  expert  talent 
of  the  nation  on  identity.  It  was  charged  that  the 
Brenton  letter  was  written  by  Prof.  Maclean  to  Mrs. 
Joseph  AVardle  from  Kingston  to  Tilsonburg,  Ontario, 
and  other  letters,  mailed  near  the  same  hour,  written 
on  similar  paper,  with  similar  ink,  admitted  to  be  gen- 
uine, were  used  to  compare,  and  pronounced  by  two 
standard  experts,  Ames  and  Gaylord,  of  X.  Y.,  to  be 
identical  with   the   Brenton   letter.     The  various  tests 


222  TRIAL    PRACTICE. 

left  their  opinion  the  same.     Four  other  witness,  long 
connected  with  banks,  gave  similar  opinions,  while  an 
equal  number  (or  fourteen  in  all)  of  Dr.   Maclean's 
personal    acquaintances    all    denied    that   he    was   the 
author   of  the  Brenton  letter.     But  they  based  their 
opinions  on  the  style  of  wording  and  uncouth  wording 
of  the  letter,  as  a  partial  reason  for  their  conclusions. 
In  this  case  certain  words,  like  "  Tilsonburg,"  and 
"Ontario,"    were    almost   absolutely    identical.       On 
covering   all    other   words   but   these,   Col.    Atkinson 
staggered  the  best  friends  of  the  Doctor  with  an  in- 
quiry of  which    one    was    the    genuine.     And    Otto 
Kirchner  made    an  equally  fine  comparison  with  the 
jury  when  he  said:     "  Suppose'you,  sir,  should  meet 
on  the  streets  to-morrow  a  friend  of  your  youth  from 
over  the  ocean,  from  your  fatherland,  and  he  recog- 
nised you,  and  you  spoke  of  the  boyhood  sports  of 
long  ago  ;  of  the  friends  he  knew  and  you  knew  ;  of 
the  scenes  of  childhood  away  among  the  green  fields 
of  Germany,  and  recalled  the  past,  while  you  had  not 
seen  him  for  twenty  or  thirty  years,  and  he  was  old 
and  wrinkled,  and  gray  and  bent,  you  still  saw  in  his 
eyes,  and  knew  from  his  voice,  and   something  that  no 
one  could  explain,  that  it  was  the  friend  of  your  youth, 
would  you  doubt  it,  or  need  an  expert  to  confirm  his 
identity?"     It  is  believed  that  this  style  of  reasoning 
•did  much  to  gain  the  $20,000  verdict  for  libel  in  pub- 
lishing the   story  of  the  Brenton  letter  and  the  hus- 
band's  insanity  caused   by  it,  even   after  others   had 
been  deceived  by  it  and  the  Canada  papers  had  quoted 
it.     But  this  case  is  still  pending  in  the  supreme  court 
•on  error,  and  may  be  soon  entirely  changed. 


MISTAKEN    IDENTITY.  223 

THE  LOCKWOOD  ROBBERY  CASE. 

The  following  remarkable  story  of  two  strange 
trials  is  vouched  for  by  Ex-Congressman  J.  H.  Mc- 
Gowen,  of  Washington,  D.  C,  and  Judge  John  B. 
Shipman,  of  Coldwater,  both  of  whom  participated  in 
the  trials  and  furnish  facts  as  a  basis  of  this  report. 
The  case  is  stranger  than  fiction  : 

In  the  Autumn  of  1868,  two  young  men  entered  the 
house  of  Jeremiah  Lockwood,  a  farmer  residing  seven 
miles  south  of  Coldwater,  Michigan,  and  robbed  it  of 
considerable  money,  clothing,  jewelry  and  goods,  in 
broad  daylight. 

The  family  were  all  from  home.  The  burglars 
broke  in  by  prying  up  a  window  opening  into  the 
pantry.  They  ransacked  the  bureau  drawers  and 
clothes-presses,  gathering  enough  plunder  to  make 
two  large  bundles.  One  of  them  had  tied  about  his 
person  when  he  entered  the  house  a  large  red  scarf. 
This  he  spread  upon  the  floor  and  laid  broad-cloth 
coats,  silk  dresses,  ladies  furs,  and  other  clothing  upon 
it,  until  he  had  a  large  package.  Tied  at  the  four  cor- 
ners and  slung  over  his  shoulder,  he  was  in  marching 
order.  The  other  found  a  large  oil-cloth  satchel 
which  was  bound  around  the  bottom  and  at  the  ends 
with  red  leather.  This  he  filled  with  similar  plunder, 
when  the  two  left  the  house  by  the  back  way  passing 
out  through  a  skirt  of  woods  and  into  one  of  the  most 
frequented  high-ways  in  the  county. 

Thus  conspicuously  loaded  these  two  rogues  traveled 
to  the  north-west  directly  through  one  of  the  best  set- 
tled neighborhoods  in  the  county,  until  they  reached 


224  TRIAL    PRACTICE. 

Batavia  Center,  :i  distance  of  eight  miles.  More  than 
twenty  people  saw  them  as  they  tramped  along  the 
highway  that  bright  Autumn  day. 

They  met  a  farmer  who  was  going  to  the  cider  mill 
with  a  load  of  apples.  He  stopped  and  talked  with 
them,  while  they  stood  beside  his  wagon  and  ate 
apples.  They  chatted  with  a  woman  who  was  at  work 
in  her  door-yard  near  the  road. 

The  red  bundle,  and  the  red  bound  satchel,  made 
them  conspicuous,  and  they  were  apparently  well- 
scanned  by  all  who  noticed  them.  When  they  reached 
Batavia  it  was  nearly  dark.  They  took  supper  there 
at  the  country  tavern.  After  supper  they  threw  dice 
on  the  counter  at  the  bar  to  determine  who  should  pay 
for  the  drinks. 

They  then  arranged  with  the  landlord  to  take  them 
as  far  as  Bronson  station  on  the  railroad.  In  payment 
for  their  supper  and  ride  they  gave  their  host  a  five 
dollar  greenback.  It  had  been  torn  and  patched  in  a 
peculiar  way,  and  had  other  marks  upon  it  by  which  it 
was  readily  identified.  At  Bronson  they  got  out  of 
the  wagon  just  where  the  highway  crossed  the  railroad, 
and  with  their  packs  on  their  backs  started  west  on  the 
railroad  track. 

The  larceny  was  committed  on  Saturday.  On  the 
Monday  or  Tuesday  following,  two  young  men  were 
arrested  at  Sturgis  who  were  supposed  to  be  the  crim- 
inals. Sturgis  is  the  second  station  west  of  Bronson. 
The  parties  arrested  were  brought  to  Coldwater  and 
put  in  jail,  and  a  number  of  parties  who  had  seen  the 
thieves  as  they  tramped  through  the  county  on  the 
Saturday  previous,  came    to  town  and  identified   the 


MISTAKEN    IDENTITY.  225 

men  arrested  as  the  men  whom  they  had  seen.  Among 
those  who  so  identified  them  was  the  old  landlord  who 
had  given  them  their  suppers  and  driven  them  to 
Bronson. 

An  examination  was  had  before  a  justice,  and  they 
were  bound  over  for  trial  in  the  Circuit  Court.  They 
loudly  protested  their  innocence,  but  the  testimony 
was  so  strong  against  them  that  but  little  attention 
was  paid  to  their  story.  Lockwood  identified  the  bill 
that  was  paid  to  the  hotel  man,  and  a  score  of  wit- 
nesses, including  the  landlord,  identified  the  prisoners  as 
the  young  men  who  carried  the  red  bundle  and  the  red 
bound  satchel. 

The  prisoners  were  without  money,  and  compelled 
to  lie  in  jail  a  number  of  weeks  before  their  trial 
came  off.  John  W.  Turner  was  appointed  by  the 
court  to  defend  the  prisoners.  Twenty  witnesses  on 
the  part  of  the  people  swore  they  had  seen  the  actual 
thieves,  and  were  ready  to  testify  to  the  identity  of 
the  prisoners.  Some  time  during  the  progress  of  the 
trial  Mr.  E.  (r.  Parsons,  of  counsel,  whispered  to  the 
prosecuting  officer,  and  said  :  "I  have  just  been  in- 
"  formed  that  the  old  landlord  has  been  looking  at 
"  these  boys  since  they  were  brought  into  the  court 
"  room,  and  has  made  up  his  mind  that  he  was  mis- 
"  taken  when  he  saw  them  before,  and  that  they  are 
"  not  the  boys  who  gave  him  that  five  dollar  bill. 
-'What  shall  we  do  about  it?-'  The  prosecutor 
answered  :  "  AVe  must  put  him  on  the  witness  stand  to 
identify  the  bill  at  least.  After  asking  him  the  neces- 
sary questions  about  the  bill,  we  will  then  ask  him  if 
he  did  not  see  the  prisoners   immediately  after  their 

(15) 


226  TRIAL    PRACTICE. 

arrest,  and  if  he  did  not  then,  while  the  transaction 
was  fresh  in  his  mind,  identify  them  as  the  men  who 
had  taken  supper  at  his  house  and  whom  he  had  driven 
to  Bronson." 

The  landlord  was  called  and  examined.     He  readily 

identified  the  patched  greenback.     The  question  was 

then  put :   "  Did  you  not,  immediately  after  the  arrest 

of  these  prisoners,  go  to  the  jail,  at  the   request  of 

the  sheriff,  and  there  identify  them  as  the  men  who 

gave  you  the  greenback?"     He  answered:     "Yes  I 

did."     Then  he  went  on  hurriedly  to  say  :     "I  don't 

believe   it  now.     I  have  been  looking  at   them  since 

I    sat  here  and  I   don't    believe  they   are    the   men. 

However,  I  could  tell  if  I  could  see  the  tallest  one's 

hand."   "What  about  his  hand,"  was  asked.   "Well," 

said  the  old  man,  "the  boys  threw  dice  after  supper 

that  night  at  my  house,  and  the  tall  one  laid  his  hand 

on  the  counter  right  under  the  lamp,  and  I  noticed  a 

peculiar  scar  on  the  back  of  it.     I  am  sure  that  I  could 

recognize  that  hand  again  anywhere."      The  taller  of 

the  prisoners  was  known  as  "  Slimmy."     Mr.  Turner 

at  once  said  to  him:    "Slimmy,  walk  up  there  and 

show  your  hand."      He  got  up  with  some  reluctance, 

and  much  flushed.       He  put  his  right  hand  upon  the 

rail  in  front  of  the  witness.      "  Oh,  no,"  said  the  old 

landlord,  "it  was  the  left  one."     He  put  up  his  left 

hand.      The  witness,  after  deliberately  adjusting  his 

spectacles,  took  the  hand  up  by  the  forefinger,  turned 

the  back  of  it  to  the  light,,  and  exclaimed  :   "My  God, 

that  is   the  hand!"       The   hand  was  examined,  and 

a  V  shaped  scar  found  just  back  of  the  forefinger.     It 

was,  as  the  witness  had  said,  a  peculiar  looking  scar. 


MISTAKEN    IDENTITY.  227 

The  welt,  or  edge,  of   the  scar  stood  well  above  the 
surface  of  the  hand,  and  was  very  red. 

The  only  defense  of  the  prisoners  was  the  unsworn 
statement  of  the  prisoners  themselves.  Of  course,  they 
were  readily  convicted.      The  jury  had  scarcely  left 
their   seats   before  they   returned    with    a    verdict  of 
guilty.    The  late  Judge  Bacon,  of  Niles,  presided.    The 
prisoners  were  called  up  for  sentence.     When  the  tall 
one  was  asked  the  usual  question  why  sentenee  should 
not  be  pronounced  upon  him,  he  declared  that  on  the 
day  of  the  purported  larceny  he  was  in  Niles,  a  hun- 
dred miles  from  Lockwood's  house.      On  being  ques- 
tioned further  by  the  court,  he  said  that  on  that  day  he 
went  out  from  Niles  to  a  neighboring  village  ;  that  on 
his  return  he  caught  a  span  of   runaway  horses  that 
belonged  to  a  certain  livery  man  in  Niles,   whom  he 
named  ;  that  after  securing  the  horses  the  stage  over- 
took him,  and  he  rode  into  town  with  the  driver.     He 
named  several  prominent  gentlemen  of   Niles,  whom 
he  said  he  knew,  and  several  of  whom  he  declared  he 
saw  on  that  day.      Judge  Bacon  told  him  he  lived  in 
Niles,  and  that   he  would  make  inquiries  respecting 
these  things,  and  if  he  found  that  they  were  true,  he 
would  grant  him  a  new  trial,  or  ask  the  governor  to 
pardon  him.     "But,"   he  said,  "you  have  had  a  re- 
markably fair  trial,  and  have  been  convicted  on  the 
testimony  of  a  large  number  of  very  respectable  wit- 
nesses.    And  now  I  should  be  more  inclined  to  believe 
your  statement  were  it  not  for  the  testimony  of  the 
landlord,  relating  to  the  scar  on  your  hand."     When 
the  question  was  propounded  to  the  other  prisoner,  he 
declared   that   on  the   day  of   the  larceny  he   was  in 


228  TRIAL    PRACTICE. 

South  Bend,  Indiana.  Said  his  occupation  was  ped- 
dling jewelry  ;  that  he  had  registered  on  that  day  at 
the  hotel,  and  spent  the  day  in  his  ordinary  business. 

The  sentence  was  three  years  for  each  of  the  pris- 
oners in  the  State  prison  at  Jackson.  Some  time  after 
their  imprisonment,  Judge  John  B.  Shipman,  now  a 
prominent  lawyer  at  Coldwater,  was  employed  in  their 
behalf.  He  at  once  secured  depositions  on  which 
Judge  Bacon  granted  a  new  trial.  They  were  brought 
back  to  Coldwater,  and  tried  in  May,  1869,  where 
"  Slimmy  "  in  the  presence  of  his  counsel,  the  sheriff 
and  prosecutor,  made  a  statement  substantially  as 
follows  :  That  his  business  in  the  prison  was  finishing 
furniture  :  that  one  day  while  engaged  in  the  second 
story  of  the  shop  a  new  man  brought  some  furniture 
into  the  room,  whom  he  at  once  remembered  as  an  old 
acquaintance  who  had  always  been  said  to  resemble 
him  (the  speaker).  It  at  once  came  into  his  mind 
that  that  was  the  man  who  had  stolen  Lock  wood's 
goods.  He  said  he  took  a  piece  of  paper  and  wrote  on 
it,  "I  am  here  because  you  stole  those  goods  out  of 
Lockwood's  house  south  of  Coldwater."  This  he 
placed  where  the  man  would  see  it  when  he  returned 
to  the  room.  When  the  prisoner  read  it,  he  knew  at 
once  that  he  was  right.  That  evening  when  the  pris- 
oners were  washing  for  supper,  he  got  near  the  new- 
comer, and  talked  with  him  freely — the  man  admitting 
the  larceny,  and  giving  the  details  as  to  how  it  was  ac- 
complished. 

The  attendance  of  this  man  from  Jackson  as  a  wit- 
ness in  the  case  was  secured.  During  the  second  trial 
he  was  placed  directly  behind  the  prisoners.     The  case 


MISTAKEN    IDENTITY.  229 

was  tried  thoroughly,  as  in  the  first  instance.  All  the 
witnesses  were  again  brought  in,  and  all,  including  the 
landlord,  swore  very  positively  to  the  fact  of  identity. 
But  when  Mr.  Shipman  came  to  make  the  defense  he 
proved  an  alibi  for  both  his  clients  so  completely  and 
conclusively,  that  the  jury  rendered  the  verdict  of  not 
guilty,  without  delay. 

There  -was  no  doubt  left  in  the  minds  of  all  who 
heard  the  trial,  of  the  innocence  of  the  accused. 
"  Slimmy  "  was  in  Niles,  as  he  had  stated  to  the 
court.  The  books  of  the  livery  stable  man,  and  the 
testimony  of  a  number  of  witnesses  proved  this  be- 
yond a  shadow  of  doubt.  That  the  other  man  was  in 
South  Bend  Avas  equally  clear.  The  hotel  register 
showed  his  name  recorded  anions;  the  names  of  the 
other  guests  at  the  hotel.  He  was  also  identified  by 
the  landlord  of  the  hotel  and  other  parties  living  at 
South  Bend. 

Now  comes  the  curious  coincidences  of  this  case. 
The  men  who  broke  into  Lockwood's  house,  and  stole 
his  goods,  were  both  young  men  without  beards.  One 
was  a  tall,  slim  man,  with  a  V  shaped  scar  on  his  left 
hand,  back  of  the  forefinger.  The  other  was  a  short, 
thick-set  man  with  red  hair,  and  spoke  with  a  brogue. 
The  innocent  men,  whom  we  arrested,  were  both  young 
men  without  beards.  One  was  tall  and  slim,  and  had 
a  similar  scar  on  the  back  of  his  left  hand.  The  other 
was  short,  thick-set,  with  red  hair,  and  spoke  with  a 
brogue.  The  thieves  went  from  Bronson  west  on 
Saturday  evening.  The  innocent  men  were  arrested  at 
the  second  station  west  of  Bronson  on  the  Monday  or 
Tuesday  following. 


230  TRIAL    PRACTICE. 

It  is  of  interest  to  know  that  both  of  the  actual 
thieves  were  sent  to  prison  for  other  crimes  before  the 
innocent  men  hud  been  acquitted.  One,  as  already 
stated,  was  sent  to  Jackson  ;  the  other  was  convicted 
of  some  felony,  and  sent  to  one  of  the  prisons  in 
Indiana.  The  innocent  men  were  incarcerated  in  all 
about  six  months. 

The  keen  skill  and  courage  of  the  prosecution  in  ■ 
daring  to  swear  the  landlord  first  is  commendable. 
The  humane  language  and  bearing  of  the  court  was 
noble,  and  the  final  victory  of  Judge  Shipman  was  a 
work  of  charity  that  entitles  each  actor  in  this  strange 
case  to  lasting  honor.  Remarkable  as  the  story 
sounds  there  is  no  question  of  its  reality. 

ONLY  ONE  WITNESS. 

The  effect  of  a  witness's  manner  in  turning  the 
jury's  verdict  was  well  shown  in  an  United  States  Cir- 
cuit Court  case,  tried  in  Detroit  a  few  years  ago, 
where  the  plaintiff  was  a  mining  captain  of  powerful 
frame,  entirely  ignorant  of  book-learning  and  courts, 
but  possessing  a  strong  memory  and  impressive 
manner. 

The  claim  was  sixty-seven  thousand  dollars,  in  a 
long  complicated  account  to  be  made  almost  solely  on 
the  plaintiff's  testimony.  William  P.  Wells,  now 
Professor  in  the  Law  Department  of  the  Michigan 
University,  and  a  permanent  advocate,  conducted  the 
plaintiff's  case.  With  G.  V.  N.  Lothrop,  of  counsel, 
Messrs.  Alfred  Russell  and  C.  I.  Walker,  defended. 

The  witness  was  skilled  in  the  details  of  the  facts > 
a  man  of  great  coolness   and  courage  in  affairs,  but 


ONLY    ONE    WITNESS.  231 

timid  in  a  court  room.  He  rose  to  his  feet  when  ex- 
amined and  related  a  graphic  and  consistent  story  of 
the  entire  dealings  from  beginning  to  end  :  the  sums 
paid,  the  matters  left  in  dispute,  with  marvellous  ac- 
curacy. For  two  long  days  he  was  rigidly  cross-ex- 
amined, and  every  circumstance  tallied  with  his  truth- 
ful statement.  So  apt  and  original  in  manner,  so 
thoroughly  honest  were  his  figures,  that  the  jury  hung 
upon  his  sentences  like  listening  to  music. 

The  long  accounts  of  both  parties  were  extremely 
puzzling  to  counsel,  but  the  brave  captain  handled 
them  all  like  a  painting.  Turning  on  light  when 
needed,  and  bringing  out  the  important  features  in  bold 
relief,  he  won  a  most  signal  victory  over  what  appeared 
to  be  a  powerful  array  of  opposing  testimony  ;  illustrat- 
ing the  fact  that  witnesses  must  be  weighed,  not  counted ; 
that  the  testimony  of  one  man,  if  true,  and  the  jury 
feel  its  truth,  and  he  is  shown  to  have  had  the  best 
means  of  knowing  the  circumstances,  may  weigh 
against  many  ;  for  one  man  with  right  on  his  side,  is 
always  a  majority.  It  is  not  enough  for  a  witness  to 
know  a  fact  testified  to,  but  he  should  know  that  he 
knows  it,  feel  that  he  knows  it,  and  believe  that  he 
believes  it. 


232  TRIAL    PRACTICE. 


CHAPTER  XXI. 


IN  THE  PROCESSION. 


The  true  rule  in  starting  is  to  start  well ;  to  take  the 
right  track  and  follow  it.  Once  in  the  jwocession  it  is 
not  a  long  march  till  some  one  will  thin  the  ranks, 
and  leave  the  pathway  open.  "The  first  step  over, 
the  rest  is  easy,"  says  the  Spanish  proverb.  So  to 
join  the  procession  is  the  earliest  step  in  law  busi- 
ness. 

If  one  seeks  his  rank  in  low  grades  of  practice,  and 
joins  the  procession  near  the  rear,  he  must  expect 
small  returns  from  a  poor  clientage  ;  but  if  alert  in 
action,  and  wise  in  his  opening  an  office  he  will  reach 
a  place  in  season,  and  retain  the  advantage. 

Established  lawyers  are  not  out  looking  for  students 
and  partners,  or  offering  rewards  for  specialists.  They 
only  notice  merit  if  thrown  in  their  way  by  business 
relations,  so  that  to  start  with  a  live  firm  in  a  bright 
city  is  a  fair  beginning,  and  to  start  well  alone  is  still 
better. 

It  is  not  always  an  easy  matter  to  get  good  posi- 
tions ;  many  a  one  waits  too  long  and  is  discouraged. 
I  know  a  friend  that  began  low,  very  low.  He  merely 
had  a  clerical  position,  but  in  turn  came  the  absence 


IN    THE    PROCESSION.  233 

•of  his  employer,  and  later  came  on  a  rich  director  in  a 
wealthy  lumber  company.  The  boy  secured  a  position 
through  his  keen  insight  into  the  company's  affairs  :  be- 
came secretary,  and  at  last  received  a  $7,000  salary — a 
handsome  position  for  a  young  man  to  attain.  Another 
took  charge  of  an  office,  cleaned  the  books  and  cases, 
watched  the  trials,  looked  up  the  law  ;  made  the  office 
like  his  own  ;  learned  the  business,  and  now  holds  a 
third  interest  from  his  excellent  habits  of  industry. 
Once  in  the  procession,  the  profits  and  promotion  fall 
easily  to  all  men  alike.  There  is  a  sort  of  "  Civil  Ser- 
vice reform  "  in  law  offices  that  few  classes  of  busi- 
ness can  equal. 

I  have  never  known  a  bright,  shrewd,  active,  ambi- 
tious and  competent  clerk,  student  or  lawyer,  to  re- 
main a  whole  month  without  something  to  do.  But 
the  chances  in  the  pi'ocession  are  six  to  one,  and  with 
reason.  Men  go  to  trusted  subordinates  for  bank 
cashiers  and  foremen.  They  look  for  tried  skill  in 
most  professions,  preferring  not  to  train  experts,  but  to 
take  them  already  educated,  and  there  is  no  place  where 
skill  is  more  rewarded  than  in  the  legal  profession. 

Men  are  helped  most  who  most  deserve  promotion. 
Skill  is  shown  by  its  workmanship.  Edison,  Brush 
and  Appleby  earned  their  fame  by  invention.  The 
last  worked  years  in  poverty  to  perfect  his  Twine 
Binder  Reaper  that  now  reaps  him  a  golden  harvest. 
If  the  lawyer  will  show  equal  energy,  study  and 
patience,  he  will  find  his  reward.  And  if  some  hint 
is  found  in  the  experience  of  the  men  here  mentioned, 
then  my  pleasant  task  shall  not  have  failed  in  pointing 
to  their  wisdom. 


234  TRIAL    PRACTICE. 

TRIAL  ELOQUENCE. 

The  following  closing  words  of  eminent  counsel  ex- 
hibit both  the  genius  and  art  of  the  advocates.  Occa- 
sions may  arise  where  the  simple  reading  of  a  mas- 
ter's language  in  his  last  appeal  for  life  or  damages, 
may  stimulate  many  a  student  to  a  higher  aim  in  elo- 
quence. There  is  a  deep  interest  in  a  lawyer's  fare- 
well to  his  jury.  Couched  in  apt  and  appropriate 
words,  like  the  tongues  of  dying  men,  they  compel 
attention.  The  greatest  cases  demand  the  greatest 
efforts,  but  all  arguments  of  importance  deserve  some 
impressive  words  that  call  out  the  nobler  feelings  of 
men  in  their  high  privilege  of  passing  judgment  on 
their  fellow-men  : 

HON.  BEXJ.  HARRISON  IN  "COLD  SPRING  TRAGEDY." 

I  have  at  my  house  an  old  engraving  that  represents 
the  first  trial  by  a  jury  —  an  English  picture.  The 
twelve  men  are  gathered  in  an  open  field.  No  house 
encloses  them.  It  is  a  murder  trial  that  is  repre- 
sented, but  it  is  very  unlike  this  murder  trial.  We 
see  here  the  accused  and  her  family  gathered  about 
her  weeping  and  appealing  to  the  jury  for  sympathy. 
Not  so  there.  The  jury  have  assembled  upon  the 
commission  of  the  crime,  and  the  body  of  the  dead 
lies  at  their  feet  upon  a  bier.  A  weeping  relative  of 
the  deceased  bends  over  the  dead  form,  and  her  locks 
drop  upon  his  face  as  her  tears  fall  in  her  agony  of 
grief.  Another  relative  of  the  dead  man,  stooping 
over  the  lifeless  form,  points  with  one  hand  to  the 
criminal  and  with  the  other  to  the  gaping  wound  by 


TRIAL    ELOQUENCE.  235 

which  the  life  tide  went  out.  This  was  an  old  trial  for 
murder.  I  only  ask  you  now,  as  this  group  gather 
around  you,  to  remember  the  dead  that  are  buried 
away  out  of  sight  ;  to  remember  the  hearth  stone 
whose  tire  has  gone  out  forever.  I  ask  you  to  re- 
member that  orphan  child  who  is  wandering  fatherless 
and  motherless  to-day.  If  any  appeal  shall  be  made 
to  your  sympathies,  I  ask  you  to  think  of  the  grief 
that  has  come  upon  another  household.  I  ask  you  to 
think  of  that  horrid  scene  at  "  Cold  Springs,"  when 
the  charred  and  blackened  remains  of  that  woman  lay 
on  the  floor,  and  that  man  with  his  head  all  torn  and 
his  teeth  bent  out  as  if  grinning  in  horrid  mirth.  I 
ask  you  also  in  her  behalf,  to  consider  these  questions 
that  have  been  presented  to  you  carefully,  honestly 
and  deliberately.  If  she  is  guilty,  speak  the  word, 
if  not,  then  let  her  go  free,  and  may  the  God  of  wis- 
dom lead  you  to  the  right  discharge  of  this  duty  that 
remain-  to  you,  and  bring  you  to  a  right  verdict. 

HON.    W.  V.   FISHBACK  IX   '-COLD   SPRIXG  TRAGEDY." 

The  thugs  of  India  were  a  sect  who  worshipped 
Kalee,  their  Goddess  of  murder.  They  murdered 
travelers  as  they  claimed  in  obedience  to  the  decree  of 
their  deity.  They  would  disguise  themselves  as  pil- 
crims  and  ingratiate  themselves  into  favor  with  trav- 
elers,  and  when  their  victims  were  off  their  guard 
strangle  them.  It  is  said  that  while  a  portion  of  a 
band  of  thugs  would  be  partaking  of  the  hospitality 
of  their  intended  victim  within  their  tent,  others  of 
the  party  would  be  digging  their  graves,  and  that  at  a 


236  TRIAL    PRACTICE. 

given  signal  the  hosts  would  all  be  murdered  by  their 
guests.  This  approaches  the  enormity  of  the  great 
guilt  of  these  defendants.  And  yet  even  here  the 
comparison  is  favorable  to  the  thugs.  They  were 
hypocritical,  it  is  true.  They  were  avaricious,  but  the 
belief  that  they  were  doing  the  will  of  their  deity  made 
the  act  a  superstitious  one,  and  is  certainly  some  palli- 
ation when  we  reflect  that  the  thugs  practiced  their 
bloody  creed  where  the  light  of  Christianity  had  not 
reached  them.  But  thirty  years  ago  the  Bible  and  the 
British  army  exterminated  the  sect. 

But  what  have  we  here  —  here  in  Marion  County,  in 
Indianapolis,  the  capital  and  pride  of  a  noble  Chris- 
tian State?  Here  under  the  very  (shadow  of  the 
church  spires  which  on  every  corner  point  the  sinner 
to  his  God,  we  have  a  murder  which  for  its  cold- 
blooded atrocity,  its  avarice  and  cruelty  in  its  hypoc- 
dcy,  puts  thugery  to  the  blush. 

While  such  has  been  the  guilt  of  this  prisoner  ;  while 
she  was  so  merciless  to  her  victim,  I  here  echo  the 
humane  teachings  of  the  law  when  I  ask  you  to  deal 
with  her  in  no  spirit  of  vindictivencss.  Deal  with  her 
mercifully,  if  you  choose,  but  with  that  measure  of 
justice  also  that  bloody-minded  men  will  pause  and 
forsake  their  guilty  purposes. 

COL.  IXGERSOLL  CLOSING  IN  THE  STAR  ROUTE  CASE. 

You  have  nothing  to  do  with  the  supposed  desire  of 
any  man,  or  supposed  desire  of  any  department  (turn- 
ing and  addressing  his  remarks  to  the  Attorney-Gen- 
-eral),  or  the  supposed  desire  of   any  government,  or 


TRIAL    ELOQUENCE.  237 

supposed  desire  of  any  president,  or  supposed  desire 
of  the  public.  You  have  nothing  to  do  with  these 
things;  you  have  to  do  only  with  the  evidence.  Here 
all  power  is  powerless  except  your  own.  When  asked 
to  please  the  public,  you  should  think  of  the  lives  you 
are  asked  to  wreck,  of  the  homes  your  verdict  would 
darken,  of  the  hearts  it  would  desolate,  of  the  cheeks 
it  would  wet  with  tears,  of  the  characters  it  would  de- 
stroy, of  the  wife  it  would  worse  than  widow,  and  of 
the  children  it  would  worse  than  orphan.  When  asked 
to  please  the  public  think  of  those  consequences. 
When  asked  to  act  from  fear,  hatred,  malice  or  cow- 
ardice, think  of  those  consequences.  Whoever  does 
right,  clothes  himself  in  a  suit  of  armor  which  the  ar- 
rows of  prejudice  cannot  penetrate,  but  whoever  does 
wrong  is  responsible  for  all  the  consequences  to  the 
last  sigh,  to  the  last  tear.  You  are  told  by  Mr.  Mer- 
rick that  you  should  have  no  sympathy,  that  you 
should  be  like  icicles,  that  you  should  be  Godlike. 
That  is  not  my  doctrine,  the  higher  you  get  in  the 
scale  of  being  the  grander  the  nobler,  the  tenderer 
you  will  become.  Kindness  is  always  an  evidence  of 
greatness.  Malice  is  the  property  of  a  small  soul,  and 
whoever  allows  the  feeling  of  brotherhood  to  die  in  his 
heart  becomes  a  wild  beast. 

"  Xot  a  king's  crown  nor  the  deputed  sword, 
The  marshal's  truncheon  nor  the  judge's  robe, 
Became  them  with  one-half  so  good  a  grace 
As  mercy  dues." 

And  yet  the  only  mercy  we  ask  is  the  mercy  of  an 
honest  verdict.    I  appeal  to  you  for  my  client,  Stephen 


238  TRIAL    PRACTICE. 

W.  Dorsey,  because  the  evidence  shows  that  he  is  a 
man  with  an  intellectual  horizon  and  a  mental  sky  —  a 
man  of  genius,  generous  and  honest.  Yet  this  prose- 
cution, this  government,  these  attorneys,  representing 
the  majesty  of  the  republic,  representing  the  only  real 
republic  that  ever  existed,  have  asked  }rou  not  only  to 
violate  the  law  of  the  land,  but  also  the  law  of  nature. 
They  maligned  nature,  they  have  laughed  at  mercy, 
they  have  trampled  on  the  holiest  human  ties,  and 
even  made  light  because  a  wife  in  this  trial  has  sat  by 
her  husband's  side. 

There  is  a  painting  in  the  Louvre,  a  painting  of  des- 
olation, of  despair  and  love.  It  represents  the  "Night 
of  the  Crucifixion."  The  world  is  wrapped  in  shadow, 
the  stars  are  dead,  and  yet  in  the  darkness  is  seen  a 
kneeling  form.  It  is  Mary  Magdalen  with  loving  lips 
and  hands  pressed  against  the  bleeding  feet  of  Christ. 

The  skies  were  never  dark  enough  nor  starless 
enough,  the  storm  never  fierce  enough  nor  wild 
enough,  the  quick  bolts  of  heaven  were  never  livid 
enough,  and  the  arrows  of  slander  never  flew  thick 
enough  to  drive  a  noble  woman  from  her  husband's 
side,  and  so  it  is  in  all  of  human  speech,  the  holiest 
word,  "  woman." 

ARNOLD  AND  RYAN  IN  THE  HUBBELL  CASE. 

In  1853,  Levi  Hubbell,  Judge  of  the  Circuit  Court 
for  Milwaukee  County,  was  impeached  by  the  Assem- 
bly for  high  crimes  and  misdemeanors  in  office.  The 
charge*  were  eleven  in  number.  The  preliminary  pro- 
ceedings occupied  six  days.     Mr.  Ryan  made  an  open- 


TRIAL    ELOQUENCE.  239 

ing  argumeut   on  all  the   charges,    occupying    nearly 

the  entire  day.  Mrs.  Hubbell  was  at  that  time  lying 
ill  at  the  house  of  a  friend  near  to  the  Capitol. 
Mr.  Arnold  made  the  closing  argument  for  the  de- 
fense, occupying  an  entire  day,  and  concluded  as 
follows  : 

"And,  in  vonder  cottage,  almost  within  the  hearing 
of  my  voice,  there  is  yet  another  who  is  waiting,  with 
intense  solicitude,  the  result  of  your  deliberations. 
She  waits,  in  unshaken  confidence  and  devoted  love, 
for  the  accused.  She  is  in  deed  as  well  as  in  law  the 
wife  of  her  husband,  and  she  would  clasp  that  man  to 
her  breast,  though  her  arm  were  in  a  flame  of  living 
fire  till  it  burned  to  its  very  socket  ;  her  prayers  are  all 
around  you  —  her  hopes  are  all  dependent  on  you.  On 
bended  knee,  and  with  eye  uplifted  prayerfully  to 
heaven,  before  you,  she  implores  you  :  '  Oh  !  give  me 
back  the  husband  of  my  youth  !  I  can  surrender  him 
to  God — lean  surrender  him  to  my  country — but 
Oh  !  spare  the  blow  which,  while  it  destroys  him, 
dooms  me  to  lean  upon  a  broken  reed,  and  to  a  life 
without  a  hope.'  Fell  blow,  indeed,  which  would  de- 
stroy the  prospects  of  one  so  young  and  beautiful, 
which,  in  a  moment,  would 

Change  the  current  of  her  sinless  years, 

And  turn  her  pure  heart's  purest  blood  to  tears. 

Her  arms  are  outstretched  to  receive  him,  and  their 
embrace  will  be  warmer  and  purer,  should  the  judg- 
ment of  this  court  vindicate  the  honor  and  fame  of  her 
husband  in  the  judgment  of  the  world." 


240  TRIAL    PRACTICE. 


MR.   RYAX'S  CLOSING. 

He  said  :  "It  was  said  that  this  trial,  that  the  evi- 
dence in  this  cause,  had  demonstrated  this  man's  inno- 
cence to  those  who  doubted  it  before  ;  that  the  ordeal 
of  trial  had  demonstrated  his  personal  and  judicial 
purity  to  the  world.  Why,  then,  if  thus  sustained  by 
universal  judgment  of  the  public,  by  the  foreshadowed 
judgment  of  this  court  appointed  to  try  him,  by  his 
own  conscience,  why,  thus  perfectly  sustained  in  com- 
ing pure  out  of  the  fire  that  tried  him,  with  the  angels 
of  heaven  to  watch  by  him  here  in  the  furnace  in 
which  his  innocence  is  only  proved,  why  kneel  to  this 
court  in  cringing  appeals?  Why,  Mr.  President,  had 
I  yesterday  to  hear  the  same  pathetic  declamation,  to 
see  the  same  mockery  of  tears,  that  I  saw  and  heard 
upon  the  trial  of  Kadcliffe,  the  murderer?  Why,  upon 
this  trial  of  a  judge  who  stands  upon  his  innocence,  of 
a  judicial  officer  who  here  says  that  he  is  innocent, 
who  boasts  that  all  the  disclosures  here  have  but 
tended  to  demonstrate  his  innocence,  to  redouble  the 
faith  of  his  friends  in  his  innocence,  and  to  convince 
even  his  enemies  of  his  purity,  wh}r,  if  all  this  secu- 
rity of  innocence  was  here,  were  the  privacies  of 
domestic  life  dragged  into  this  court  to  move  the  heart 
of  justice  ;  crying,  craven,  weeping  this  court  to  have 
compassion  upon  the  innocent  victims  of  his  guilt?  It 
was  bad  taste  ;  it  was  bad  feeling.  And  knowing  the 
learned,  eloquent,  and  able  counsel,  as  I  know  him,  I 
cannot  think  it  was  the  prompting  of  either  his  taste 
or  his  feeling  to  do  it." 


TRIAL    ELOQUENCE.  241 

Judgt    HubbeU:    "  It   was   not   my   taste,  and  you 

know   it." 

Mr.  Ryan:  '"I  know  the  gentleman.  I  know  the 
learned  counsel  well.  I  ought  to  know  him  well  at 
this  time  of  day  :  and  I  do  not  believe,  when  lie  said 
in  presence  of  this  court,  that  he  stood  here  not 
merely  as  counsel,  hut  that  he  stood  here  as  the  de- 
fendant's personal  and  judicial  friend,  I  do  not  believe 
that  he  would  of  himself  have  cringed  to  this  court, 
that  he  would  have  invoked  the  mercy  of,  and  com- 
passion for  women  and  children,  the  dead  and  the  un- 
born, to  mitigate  the  judgment  of  man  upon  man.'* 
Judge  HubbeU  was  acquitted. 

COL.   BIUNN    CLOSING   THE  CLARK   MURDER  CASE. 

Perhaps  the  most  important,  and  certainly  the  most 
hotly  contested  murder  trial  in  the  north  west,  was 
what  is  known  as  the  LaGrange  Murder  Trial  —  tried 
in  Chicago  in  the  winter  of  1878. 

To  assist  the  State"-  Attorney,  the  friends  of  the 
deceased,  Alvaro  B.  Clark,  employed  the  celebrated 
John  Van  Annan.  .Mrs.  A.  B.  Clark,  the  wife  of  the 
deceased,  and  one  Joseph  St.  Peters,  the  "  hired 
man,*'  were  charged  with  the  murder. 

Hon.  I).  W.  Munn,  was  attorney  for  .Mrs.  Clark. 
The  trial  lasted  nearly  four  weeks.  Over  eighty  wit- 
nesses were  examined.  In  the  closing  speech  for  the 
defense,  made  by  Mr.  Munn,  a  day  and  a  half  was  oc- 
cupied in  the  delivery.  The  law  and  the  facts  were 
presented  in  a  masterly  manner;  the  jury  and  vast 
audience  seemed  entranced  and  spell-bound  during  his 
entire   argument.      With   telling  effect  he  took  up  the 


242  TRIAL    PRACTICE. 

testimony    of  each   of  the   witnesses,   endeavoring  to 

show  wherein  the  testimony  for  the  people  was  un- 
worthy of  belief  ;  especially  that  testimony  tending  to 
showT  an  improper  intimacy  between  Mrs.  Clark  and 
young  St.  Peters,  upon  which  the  prosecution  relied 
as  showing  a  motive  for  the  killing.  Mr.  Munn  closed 
his  remarks  as  follows  : 

"  Gentlemen  of  the  jury,  I  am  nearly  through  ;  but 
for  your  marked  attention  and  the  earnest  expression 
of  your  every  countenance,  which  indicates  to  me  your 
great  desire  to  know  the  truth  in  the  case,  I  should 
hours  ago  have  left  my  client  in  your  hands  ;  while  she 
is  full  of  hope,  conscious  of  her  own  innocence,  I 
tremble  with  anxiety  that  I  may  have  left  something 
undone  that  I  might  have  done,  as  her  counsel.  It  is 
a  terrible  responsibility  to  have  the  management  of 
such  a  case,  where  liberty,  and  perhaps  life,  is  at 
stake.  You  will  bear  me  out,  gentlemen,  in  saying,  I 
have  done  what  I  could  against  the  great  array  of  tal- 
ent and  of  testimony  brought  to  bear  against  my 
client.  I  only  beg  your  indulgence  while  I  examine  one 
witness  more,  whom  I  have  summoned  from  the  spirit 
land.  Here  he  comes.  (The  speaker  lifting  his  eyes 
to  the  ceiling.)  It  is  the  spirit  of  Alvaro  B.  Clark  — 
swear  him  not,  Mr.  Clerk,  he  is  from  the  abode  of 
truth.     Take  the  stand,  give  the  jury  your  name  : 

"Alvaro  B.  Clark,  formerly  of  LaGrange." 

"Do  you  know  the  prisoner?"  (pointing  to  Mrs. 
Clark.) 

"  Do  I  know  her  !  She  i<  my  wife  —  the  mother  of 
my  children  —  that  were  left  fatherless  by  a  murder- 
er", bullet/'    ■ 


TRIAL    ELOQUENCE. 


240 


'•Had    she    anything  to  do,   directly  or  indirectly, 
with  your  murder?" 

"No!  No  1  No!  She  is  my  first  love.  For  years 
we  traveled  the  path  of  life  together  in  peace  — de- 
voted to  each  other  and  our  little  ones  —  I  see  them 
here.  When  weary  with  the  toils  of  the  day.  she  met 
me  with  a  smile  and  loving  kindness  ;  in  sickness  she 
was  devoted  and  kind,  and  at  last,  when  I  fell  upon 
the  steps  of  my  own  dwelling  a  corpse,  she  threw  her- 
self prostrate  by  .my  lifeless  body  and  bathed  my  brow 
with  tears  of  affection.  I  have  watched  the  trial.  I 
have  heard  the  perjury  from  the  lips  of  every  witness. 
My  darling  is  not  ouilty  !  not  ol'ilty  '."' 

Gentlemen,  you  have  heard  this  witnes-  who  cannot 
lie.  will  you.  can  you.  disbelieve  him?  If  so  |  turning 
to  Mrs.  Clark  >,  here  is  your  victim  !  By  your  verdict 
tear  her  from  these  three  bright  little  ones  —  her  three 
children  who  are  now  fatherless,  let  them  be  cast  upon 
the  cold  charities  of  an  unfriendly  world,  fatherless, 
motherless:  but  if  you  believe  this  last  witness,  who 
needs  no  corroboration  from  any  earthly  witness,  then 
by  Your  verdict  lift  this  cloud  from  the  mother,  and 
let  her  walk  forth  as  free  as  the  air  of  heaven." 

This  highly  dramatic  style  is  often  dangerous,  but 
in  this  case  was  successful  :  and  who  can  complain  of 
an  art  when  it  is  tin  thing  that  does  ft?  Such  picture- 
are  inspirations  real,  and  their  effect  lasting. 


244  TRIAL    PRACTICE. 


CHAPTER  XXII. 


STYLE  OF   SPEAKING. 


Distinguished  speakers  of  all  ages  are  believed  to 
have  given  as  much  care  and  attention  to  the  art  of 
oratory  as  musicians  now  give  to  cultivate  the  rare 
melody  of  harmonious  and  inspiring  music. 

To  suppose  one  can  enter  on  the  field  so  full  of 
genius  as  the  lawyer  finds  on  his  early  admission  to 
practice,  without  some  system,  or  plan  of  meeting  this 
essential,  is  to  believe  more  than  men  ever  expect  of 
any  other  business.  The  lucky  man  in  commerce  is 
one  brought  up  from  the  habits  of  careful  experience. 
'To  the  trained  sea  captain  his  chart  is  simple.  The 
brick  layer  or  builder  is  a  student  of  books  and  de- 
signs :  the  race-rider  is  one  accustomed  to  horses,  and 
even  the  woodsman  has  learned  to  handle  his  axe  with 
clever  skill  and  powerful  force. 

Genius  alone  is  well  likened  to  a  rich  mine  of  metal, 
that  thought  and  skill  must  apply  to  uses  and  values. 
It  is  not  what  we  know,  but  how  we  make  use  of  that 
knowledge,  that  makes  the  world  better,  or  better 
comprehends  its  beauty.  A  man  may  out-think 
twenty  of  his  neighbors  and  let  nineteen  of  the  twenty 


STYLE    OF    SPEAKING.  245 

out-do  him  in  honor  and  usefulness  by  one  actual  ac- 
complishment. 

I  have  seen  a  man  cradle  wheat  with  an  ease  and 
poetry  of  motion,  and  another  strike  the  scythe  into 
the  earth  at  every  other  clip  from  awkwardness.  I 
have  seen  the  mason  evenly  spread  his  mortar  that  a 
new  hand  would  throw  down  his  sleeve  with  a  single 
attempt  to  till  his  trowel.  I  have  known  the  well- 
tuned  voiee  of  Phillips,  in  graceful  modulation,  to 
so  charm  the  senses  of  his  hearers  that  few  could 
count  it  less  than  music,  and  no  one  saw  the  art  of 
concealing  art  that  he  had  struggled  so  long  to 
master. 

The  art  to  charm  the  senses  by  pleasing  speech  is 
an  enjoyment  greater  to  the  speaker  once  acquired 
than  to  rule  an  empire.  Gibbon  wrote  his  "  Memoirs  " 
six  times  to  secure  perfection.  Turner  walked  over 
mountains  and  in  the  water  till  they  colored  the  retina 
of  his  eyes  with  intensity,  before  committing  the 
colors  to  canvas.  The  elegy  of  Gray  and  the  "  Vil- 
lage "  of  Goldsmith,  with  the  later  examples  of  endu- 
rance by  Morse  and  Edison,  are  apt  illustrations  that, 
"  the  hand  of  the  diligent  niaketh  rich  "  in  oratory,  in 
science,  and  all  useful  achievements. 

I  am  not  urging  the  practice-before-a-lopking-glass- 
style,  but  a  plan  of  speaking  of,  and  dealing  with, 
subjects  that  will  command  attention,  and  secure  a  fol- 
lowing. The  method  of  Judge  Curtis,  of  New  York, 
is  to  think  out  his  speeches  as  Sumner  did.  Van 
Annan  writes  incessantly  during  trials,  while  each 
master  with  consummate  care  the  details  of  his  case  in 
his  own  peculiar  way. 


246  TRIAL    PRACTICE. 

Both  Porter  and  Shaffer,  of  New  York,  write  all 
salient  points  of  evidence  with  their  own  pens,  and 
trust  no  notes  to  any  but  their  own  making.  They 
commit  their  speeches  as  they  go  along ;  the  former,  a 
powerful  examiner,  the  latter,  a  master  of  human  na- 
ture, both  eminently  successful.  Judge  Beach  trusts 
different  branches  to  associates,  and  speaks  from 
copious  manuscript  ;  while  Graham  reads  frequently 
and  quotes  all  the  wisdom  of  the  past,  at  command,  on 
the  topics  under  discussion.  Emory  Storrs  speaks 
with  powerful  rapidity,  composes  on  his  feet,  carries 
his  hearers  with  rhythmical  sentences,  but  is  a  trained 
and  thorough  speaker.  Wirt  Dexter  is  more  deliber- 
ate, but  equally  effective.  He  is  a  master  of  modula- 
tion and  emphasis,  a  student  of  line  language  and  rich 
in  resources. 

Colonel  Breckinbridge,  of  Lexington,  is  one  of  the 
most  flowery  speakers  since  the  days  of  Crittenden, 
whom  his  style  resembles  as  Beach  resembles  Beecher. 
Daniel  Dougherty,  of  Pennsylvania,  is  as  fluent  in  his 
style  as  Tom  Marshall  was  in  his,  without  the  eccen- 
tricities and  brilliant  fancy  of  that  high  bred  Kentucky 
orator. 

Leonard  Swett,  of  Chicago,  and  Colonel  Broadhead, 
of  St.  Louis,  form  a  pair  of  the  most  scholarly  ora- 
tors in  America.  Yet  each  could  relate  many  strug- 
gles and  bitter  embarrassments  in  early  life.  They 
had  mastered  the  art  of  advocacy  in  earlv  days,  but 
practice  their  art  like  musicians,  reading  and  improving 
through  years  of  experience.  Justice  Matthews  and 
Judge  Hoadly,  present  a  strange  contrast,  while  Gene- 
ral Butler  and  Senator  Colliding  are  as  widely  dissimi- 


STYLE    OF    SPEAKING.  247 

lar.  Butler  wins  by  rarity  of  illustrations,  Conkling 
by  rich  imagery,  Matthews  by  his  logic  and  intensity, 
Hoadly  by  his  mastery  of  analysis  and  purely  legal 
principles.  Senator  Carpenter  was  an  ideal  orator 
who  chose  his  central  point  and  built  around  it, 
graphic  in  style,  vivid  in  description,  it  required  that 
giant,  Judge  Ryan  of  Madison,  to  even  approach  him 
in  argument.  Stars  of  such  brilliancy  are  seldom  now 
equaled,  and  never  excelled,  in  Wisconsin,  that  home 
of  brilliant  advocates  like  Vilus,  Hudd,  Jenkins  and 
Hazelton. 

In  the  circle  of  the  several  States,  from  Gov.  Davis, 
of  St.  Paul,  on  the  west,  to  the  scholarly  Edmunds, 
on  the  east  ;  from  the  musical  pathos  of  Judge  Curtis 
in  New  York,  to  the  picturesque  imagery  of  Gordon 
and  Yoorhees  in  Indiana,  and  the  florid  style  of  Jeff 
Chandler,  on  the  Pacific  slope,  or  the  same  vigorous 
heart-speaker,  like  H.  M.  Furnam,  of  Texas,  each  and 
all  have  come  to  fame  by  force  of  earnest  oratory, 
ripened  by  age,  and  burnished  by  use.  They  stand 
and  speak  at  the  bar  and  before  the  public,  and  in 
life's  affairs,  as  actors  do  on  the  mimic  stajre  :  study- 
ing  their  several  parts  with  care  and  diligence,  apply- 
ing to  them  their  genius  and  experience,  ripened  by 
age  and  fed  by  inspiration,  till  they  so  please  their 
hearers  as  to  meet  most  hearty  recalls  and  clear  appre- 
ciation in  large  emoluments. 

Tom  Corwin,  of  Ohio,  who  started  with  Jere  Black, 
and  died  young,  was  a  master  of  advocacy,  but  a  dif- 
ferent kind  of  a  lawyer.  He  won  by  wit.  His 
speeches  were  flowery.  He  often  captured  a  jury  by 
a  simple  story,  or  a  flight  of  eloquence.     He  enjoyed 


248  TRIAL    PRACTICE. 

a  joke,  and  made  all  others  in  hearing  take  an  interest 
in  his  way  of  telling  it.  Large,  laughing  eyes,  dark 
complexion,  robust  in  speech  and  manner,  for  years  he 
led  the  Ohio  bar  in  eloquence  and  won  his  cases  by  it. 
He  regarded  his  wit  and  manner  as  a  mistake,  and  said 
at  last  that  "  men  never  respect  those  who  always  make 
them  laugh."  That  "one  should  look  wise  to  attain  emi- 
nence." Mr.  Corwin  was  in  Congress  with  Henry  Clay, 
and  made  many  brilliant  little  speeches  and  attained 
national  fame.     His  work  is  mentioned  elsewhere. 

Webster  and  Choate  were  such  active  rivals  as  to  be 
evenly  mated.  In  the  Smith  Avill  contests  in  1845,  the 
heirs  retained  Rufus  Choate  as  their  lawyer,  where- 
upon the  friends  of  the  will  secured  the  services  of 
Daniel  Webster  as  their  attorney.  The  case  came  to 
trial  before  the  Supreme  Court  of  Massachusetts,  in 
July,  1847,  and  occupied  two  days.  There  was  the 
greatest  excitement,  not  only  on  account  of  the  inter- 
ests involved,  but  also  on  account  of  the  fame  of  the 
two  great  lawyers  who  were  to  speak  for  and  against  the 
will.  "The  battle  of  these  giants"  is  still  remembered 
in  this  vicinity,  although  it  occurred  nearly  thirty-six 
years  ago.  So  great  was  the  crowd  that  ladders  were 
put  up  to  the  windows  of  the  court  house,  and  eager 
listeners  stood  upon  them  for  hours.  When  Mr.  Choate 
had  finished  his  argument  the  conclusion  was  nearly 
unanimous  among  the  spectators  that  the  will  would 
be  broken  ;  but  when  Mr.  Webster  had  finished  his 
masterly  address  no  one  doubted  but  that  it  would  be 
sustained  —  so  say  the  older  men  of  to-day  who  were 
present  at  the  famous  trial.  The- jury  brought  in  a 
verdict  sustaining  the  will. 


STYLE    OF    SPEAKING.  249 

General  Butler  early  learned  the  secret  of  Choate's 
success,  and  matched  it.  He  defended  a  famous  case 
where  Choate  prosecuted,  and  in  his  closing  made  such 
a  masterly  analysis  of  his  opponent's  style,  that  he 
mortified  the  immortal  Iiufus,  and  won  his  victory. 
Butler  has  since  won  many  verdicts,  and  next  to  Beach 
and  Roscoe  Conkling,  is  to-day,  18*3,  the  greatest 
living  advocate  in  practice. 

His  chief  resource  is  a  large  brain  and  long  experi- 
ence in  hard  cases.  He  was  government  counsel  in  the 
Johnson  impeachment  case,  and  the  master  advocate  of 
them  all.  What  he  fails  to  discern  in  a  trial  is  hardly 
worth  noting.  His  power  of  logic  and  strategy  are 
both  marvelous.  In  a  railroad  accident  case  the  in- 
jured man  said,  "  It's  all  my  fault  ;  if  I'd  been  inside 
I  wouldn't  have  been  hurt,"  showing  clearly  contribu- 
tory negligence.  '  "This  was  but  the  wailing  of  a  dis- 
ordered fancy,"  said  Butler,  "for  they  swear  he  was 
in  his  place,  inside  the  car  door  —  all  swear  it  but  the 
allies  of  this  corporation."  He  won  a  $26,000  ver- 
dict, which,  on  two  new  trials,  reached  $45,000,  and  was 
affirmed  and  settled. 

Roscoe  Conkling' s  power  is  in  mastery  of  language 
and  force  of  argument.  He  is  not  a  genius,  like  But- 
ler, but  a  man  of  immense  tact,  with  force  of  reason 
and  logic.  He  is  commanding,  intense,  graphic,  and 
full  of  supreme  courage,  which  is  admired  in  a  court 
room,  and  delights  an  audience.  He  is  rapidly  acquir- 
ing a  fortune  in  his  excellent  practice.  Had  he  always 
followed  the  law  as  devotedly  as  he  did  politics,  his 
fame  would  have  been  greater  as  an  advocate.  Larire, 
tall,  commanding,  almcst  imperial  in  bearing,  he  is  an 


230  TRIAL    PRACTICE. 

attractive  and  impressive  speaker,  with  scarcely  a  peer 
as  an  orator  in  America. 

These  advocates,  all  successful,  are  each  students  of 
oratory,  patient  in  detail,  earnest  in  manner,  effective 
in  delivery.  While  their  number  could  be  greatly 
augmented,  and  perhaps  should  be  doubled,  they  rep- 
resent the  highest  order  of  legal  eloquence  and  Amer- 
ican advocates.  Many  others  herein  described  are 
equally  worthy  of  study,  and  their  wisdom  and  art 
dense  with  interest. 

Hon.  Chas.  S.  May,  of  Kalamazoo,  himself  an  ex- 
cellent advocate,  thus  vividly  describes  Mr.  Lincoln's 
style  of  oratory  in  his  great  campaign  with  Stephen  A. 
Douglas  : 

Promptly  at  the  hour  appointed  for  the  meeting,  in 
the  midst  of  a  buzz  of  eager  expectation  and  quiet  ap- 
plause, following  through  the  main  aisle  of  the  hall 
the  chairman  of  the  evening,  there  entered  a  tall,  sal- 
low faced  man  with  disheveled  hair  and  lank,  angular 
figure,  dressed  in  plain  black  —  and  I  had  my  first 
view  of  Abraham  Lincoln.  Preceded  by  the  chairman 
he  mounted  the  bare  platform  at  the  end  of  the  hall, 
and  after  a  brief,  formal  introduction,  stood  face  to 
face  with  his  audience.  I  should,  perhaps,  say, 
stooped  apologetically  before  his  audience,  for,  bowed 
forward,  with  his  hand  on  a  low  stand  where  he  had 
deposited  a  few  scraps  of  newspaper  memoranda,  he 
presented  a  timid  bashful  appearance.  His  opening 
sentences  were  not  more  reassuring  than  his  attitude. 
They  were;  hesitating,  involved  and  awkward,  as  he 
went  on  to  depreciate  his  ability  to  follow  so  distin- 
guished a    speaker  as   (Jen.   Cass,   of    Michigan,   who 


STYLE    OF    SPEAKING. 


251 


had  spoken  the  night  before  in  the  same  hall.  Indeed, 
so  lame  and  halting  were  his  first  words,  and  so  awk- 
ward and  unpromising  his  whole  appearance  that,  re- 
calling the  eulogy  of  the  party  paper,  I  said  to  myself, 
"  Can  this  be  one  of  the  first  orators  of  Illinois?  Is 
this  what  they  call  eloquence  in  Chicago?  "  But  be- 
fore my  disappointment  had  time  to  deepen  into  dis- 
gust, the  speaker  began  to  recover  himself,  he  raised 
himself  from  the  table  to  his  full  height,  his  language 
beo-an  to  flow  more  smoothly  and  grammatically,  he 
began  to  uncoil  himself  in  mind  and  body,  so  to  speak, 
and  very  soon  I  was  listening  with  rapt  and  deepening 
interest  to  his  words. 

Of  the  speech  itself,  which  held  that  weighty  and 
intelligent  audience  for  more  than  two  hours,  I  still 
retain  a  perfect  and  vivid  impression.  Delivered  in 
an  animated,  earnest,  conversational  manner,  with  a 
clear  and  pleasant,  but  penetrating  tenor  voice,  with 
no  attempt  at  oratory  or  fine  language,  it  was  a  candid, 
a  convincing  and  powerful  political  argument,  ad- 
dressed to  the  reason  and  conscience  of  his  hearers. 
Nothing  could  exceed  its  perfect  fairness  of  tone  and 
statement,  and  from  beginning  to  end  there  was  noth- 
ing to  detract  from  its  dignity  —  not  an  epithet  or 
coarse  expression,  not  a  single  attempt  to  provoke  ap- 
plause, or  create  a  laugh  by  anecdote,  or  joke,  or  stale 
wit,  or  appeal  to  passion  or  prejudice  Mr.  Lincoln 
was  famous  as  a  story-teller,  but  he  did  not  tell  his 
stories  in  his  speeches.  He  was  full  of  wit  and  drol- 
lery but  he  used  these  in  private.  The  innate  serious- 
ness and  earnestness  of  the  man  lifted  him  in  his  public 
efforts  to   a  plane   above  these   diversions.       But  his 


TUIAL    PRACTICE. 


logic  was  overwhelming,  Proceeding  from  premises 
stated  with  the  utmost  fairness,  and  with  transparent 
clearness,  ii  moved  to  its  conclusions  with  a  force  and 
power  and  thoroughness  that  left  no  room  or  quarter 
for  sophistry  or  evasion. 

In  replying  to  the  plausible  aud  specious  arguments 
and  positions  o{  his  great  rival,  who  was  a  master  of 
political  attack  and  fence,  he  had  abundant  opportu- 
nity to  display  his  great  power  of  analysis  and  his 
keen  discernment  of  the  weak  points  o(  his  adversary. 
1  remember,  too,  that  he  had  a  quaint  and  original 
way  of  putting  things.  Coming  to  a  particularly  un- 
truthful and  audacious  proposition  of  his  opponent,  he 

said  :    "  Now,  it   is  exceedingly  difficult    to  answer  such 

an  argument  as  this.  It  gains  strength  and  plausibil- 
ity, paradoxical  as  it  may  seem,  from  it<  very  unrea- 
sonableness, for  when  a  man  like  Judge  Douglas 
makes  such  a  proposition, a  man  who  has  been  so  long 
in  public  life  and  in  a  position  to  know,  it  is  natural 
for  men  to  say,  'This  thing  looks  so  all  wrong  and 
preposterous  to  us  that  we  may  ho  mistaken  after  all, 
for  //<  must  see  something  that  we  dorCt  see."  A 
spontaneous  hurst  o(  quiet  hut  genoral  applause 
showed  that  the  audience  appreciated  the  keen,  line 
point . 

1  will  not  undertake  in  this  brief  article  to  give  even 
the  substance  of  this  great  speech.  Mr.  Lincoln  had 
momentous  questions  to  discuss  —  questions  of  Lib- 
erty, o(  Slavery,  o(  Patriotism  —  and  he  treated  tnem 
in  a  way  I  have  never  seen  surpassed.  Of  all  our 
great  political  speakers  of  this  generation  —  and  1  have 
heard  them  all  —  he  has  been  to    me   the   model  stump 


STYLE    OF   SPEAKING.  253 

orator.  Discarding  all  the  tricks  and  artifices  and 
slock  expressions  so  common  in  this  style  of  address, 
he  literally  reasoned  with  the  people,  and  lifted  them 
up  to  the  plane  of  his  own  patriotic  and  moral  earnest- 
ness. While  it  was  not  eloquence  in  the  traditional 
and  technical  sense,  it  realized  the  very  essence  and 
definition  of  eloquence  —  persuasion. 

RUFUS  CHOATE. 

Rufus  Choatewas  as  nervous  as  a  race-horse,  quick, 
keen,  fiery,  fluent,  pathetic  and  eloquent,  tall,  slim, 
graceful,  gifted  and  bred  to  the  law:  he  was  seldom 
matched,  save  by  Webster.  The  charm  of  his  words 
was  like  a  poem  of  wondrous  beauty.  The  rhythm 
of  his  voice  like  sweet  music.  He  was  crafty  in  de- 
tails, but  won  by  power  of  eloquence. 

A  great  lover  of  books  and  rare  learning,  he  was  a 
constant  and  hungry  reader.  Rhetorically  speaking, 
he  had  the  best  command  of  language  of  any  advocate 
of  his  day  in  America.  His  speeches  are  not  reported. 
On  the  street  he  walked  rapidly.  His  person  stooped 
a  little,  but  all  who  passed  him  recognized  a  genius  of 
intense  power  and  ability.  I  lis  long  jet  black  hair 
and  piercing  eyes  framed  a  [tale  face  of  intellectual 
mould  and  distinction. 

At  the  sound  of  his  voice  one  would  go  nearer. 
Vast  audiences  hung  on  his  sentences  entranced. 
School-boys  and  college  students  especially,  admired 
his  exciting  delivery  and  dramatic  action. 

A  friend  who  heard  him  seventy  times  in  four  years 
(he  was  always  in  important  cases  on  one  side  or  the 


254  TRIAL    PRACTICE. 

other),  says :  "I  could  listen  to  him  all  night.  He 
was  such  an  actor.  No  words  now  can  be  recalled, 
but  I  know  he  spoke  as  I  believed,  and  reasoned  as  the 
common  sense  of  the  matter  seemed  to  dictate.  I 
remember  he  spoke  to  one  at  a  time  walking  in  front 
of  the  jury,  but  his  voice  was  kept  well  modulated. 
The  wonder  of  his  delivery  was  its  earnestness.  The 
beauty  of  his  thoughts  entranced  his  hearers.  He 
died  early  ;  worn  out  under  sixty,  by  the  rapid  running 
of  his  life's  machinery,  but  in  his  intensity  he  lived 
long." 

DANIEL  WEBSTER. 

Daniel  Webster,  the  greatest  of  American  orators 
and  statesmen,  was  a  native  of  New  Hampshire,  born 
January,  1782,  died  in  October,  1852,  at  the  age  of 
seventy-one.  At  the  age  of  fifteen  he  entered  Dart- 
mouth College,  graduated  in  due  time  at  the  head  of 
his  class  ;  studied  law  and  taught  in  an  academy  for  a 
year.  He  studied  law  in  his  native  village,  and  was 
admitted  to  practice  in  Boston,  at  the  age  of  twenty- 
three.  His  early  practice  was  near  his  home,  but  later 
at  Portsmouth,  and  was  elected  to  Congress  in  1812. 
Here  his  remarkable  powers  as  an  orator  were  devel- 
oped. He  lived  in  an  age  of  giants,  and  soon  ranked 
as  one  of  the  greatest  in  the  National  Congress.  Five 
years  later  he  removed  to  Boston,  and  ten  years  later 
still  represented  Boston  as  a  United  States  Senator. 
He  was  very  largely  employed  in  political  life,  having 
been  twice  Secretary  of  State.  He  had  a  strong  de- 
sire for  the  presidency,  but,  like  Henry  Clay,  was  too 
prominent  in   his   opinions  to  succeed   to  that  station. 


STYLE    OF    SPEAKING.  255 

Hi*  chief  prominence  in  law  was  his  art  of  advocacy. 
In  language  powerful  and  dramatic,  in  delivery  strong, 
logical  and  impressive,  in  manner  dignified  and  ma- 
jestic, his  name,  fame,  tone,  character  and  presence 
increased  the  strength  of  his  well-worded  sentences. 
In  any  city  and  any  country  Webster's  speeches  would 
have  attracted  large  audiences  on  great  occasions. 
Other  lawyers  have  known  a  wider  range  of  authori- 
ties, many  have  mastered  the  facts  with  as  accurate 
analysis,  but  few  men  ever  combined  such  strength  of 
voice,  power  of  thought,  or  carried  such  conviction 
with  his  delivery  as  did  Daniel  Webster  before  a  jury, 
in  argument  or  a  Senate  debate.  His  character  and 
speeches  stand  out  alone,  a  monument  to  American 
advocacy. 

The  style  of  Webster's  speeches  was  in  perfect  har- 
mony with  his  nature.  He  was  large,  heavy,  labored 
and  strong,  uever  hurried,  often  grand,  and  occasion- 
ally sublime.  But  his  nature  was  sublime.  He  feared 
only  Choate,  and  Choate  feared  Webster  alone.  Web- 
ster won  cases  by  logic.     Choate  by  eloquence. 

The  late  Senator  Stevens  said  of  Webster:  "I 
shall  never  forget  my  first  trip  away  from  home,  nor 
the  impressions  it  made  on  me.  I  was  quite  a  young 
man,  and  some  business  fell  into  my  hands  that  carried 
me  north.  I  had  never  been  as  far  as  Washington  be- 
fore, and,  of  course,  I  wanted  to  see  what  was  there 
to  be  seen.  I  went  into  the  Senate  gallery  and  took 
my  seat.  I  could  easily  pick  out  the  prominent  men 
by  the  pictures  I  had  seen  of  them.  Pretty  soon  a 
question  came  up,  and  the  President  of  the  Senate  an- 
nounced that   Mr.  Webster  was   entitled   to  the   floor. 


25(5  TRIAL    PRACTICE. 

Of  course  I  was  very  much  gratified  that  I  was  to  hear 
him.  He  arose  and  began  speaking  in  an  ordinary 
conversational  way.  I  think  he  took  his  snuff  occa- 
sionally. He  never  made  a  gesture  from  the  time  he 
opened  until  he  closed.  I  thought  it  all  sound  doc- 
trine, but  I  was  convinced  that  I  knew  a  dozen  college 
boys  who  could  have  beaten  him  speaking.  The  next 
morning  I  picked  up  a  paper.  There  was  his  speech 
headed:  'Mr.  "Webster's  Great  Speech  on  the 
Finances.'  Pshaw  !  I  thought  they  don't  call  that  a 
great  speech,  do  they?  I  saw  another  paper  ;  there  it 
was  again,  headed  '  Mr.  Webster's  Great  Speech  on 
the  Finances.'  I  went  to  Baltimore.  There  they  had 
Mr.  Webster's  great  speech  on  the  finances.  I  reached 
Philadelphia,  and  everybody  was  talking  about  Mr. 
Webster's  great  speech  on  the  finances.  I  got  to  New 
York.  There  everything  was  in  a  ferment  over  Mr. 
Webster's  great  speech  on  the  finances.  It  wras  the 
same  way  in  Boston.  So  I  concluded  that  it  must, 
indeed,  be  a  great  speech.  It  put  me  to  thinking,  and 
I  made  up  my  mind  that  it  was  not  the  way  a  man  said 
anything,  but  what  he  said  made  him  an  orator." 


NEW    YORK    LAWYERS.  ^5  i 


CHAPTER  XXIII. 


THE   NEW   YOKE   BAR. 


Men  who  earn  fabulous  fees  and  make  splendid 
names  will  always  be  watched  with  a  degree  of  curious 
wonder.  We  like  to  look  in  alone  on  their  inner  life 
and  see  how  they  bear  the  silent  struggles  of  rising  in 
the  world,  that  we  may  better  judge  of  their  power 
and  fame,  and  how  they  have  attained  them. 

The  present  head  of  the  American  nar  is  not 
Charles  O'Connor,  who  bore  the  honor  so  long  and 
worthily.  There  is  no  head  at  present.  He  is  aging 
fast,  and  over  70.  His  person  was  something  like 
Choate,  but  for  Choate's  nervousness  he  has  coolness. 
In  presence,  commanding  ;  in  style,  lucid  and  elabo- 
rate ;  in  trials,  keen,  adroit  and  full  of  the  intuitive 
arts  of  a  master  advocate.  Not  so  eloquent  as  the 
late  James  T.  Brady  or  Rufus  Choate,  but  combining 
so  many  traits  and  virtues,  that  he  has  ever  been 
known  as  a  model  advocate.  He  has  made  all  branches 
of  law  a  science,  and  is  a  scientist  in  practice. 

Charles  O'Connor,  now  over  75,  nearly  out  of  court 
practice,  is  still  one  of  the  model  advocates  of  America, 
and  would  have  made  his  mark  in  any  nation  as  a 
clear,  logical  and  convincing  rea^oner,  of  great  indus- 

(17) 


258  TRIAL    PRACTICE. 

try  and  excellent  common  sense,  always  his  best 
weapon  in  winning  cases. 

In  figure,  tall,  erect,  dignified,  ready;  with  no  at- 
tempt at  wit,  captious  practices,  or  overbearing  means 
of  seeking  victory,  he  first  mastered  his  profession, 
next  his  cases,  and  last,  his  courts  and  juries.  His 
voice  has  ever  been  clear  with  metallic  ring  and  singu- 
lar penetration.  His  self-poised  and  even-tempered 
action,  leaves  him  always  complete  master  of  his  sen- 
tences. He  cares  little  for  trifles,  and  acts,  speaks 
and  brings  all  evidence  and  law  to  bear  directly  on  the 
merits  of  his  cases. 

In  this  way  he  is  trusted,  believed  in  and  followed 
by  a  host  of  clients  and  corporations  of  which  he  has 
long  been  the  trusted  adviser.  He  is  rather  austere,  but 
it  is  from  force  of  habit  rather  than  feeling  of  pride 
or  haughtiness.  To  secure  his  counsel  one  must  pass 
a  paitner  or  two,  and  be  prepared  for  a  brief  visit  and 
a  large  deposit  in  fees  ;  the  latter  he  never  accepts  from 
his  intimate  clients,  it  being  requested  by  the  gentle- 
manly time-keeper  at  about  $100,  and  more  every 
extra  hour's  consultation. 

"Win.  M.  Evarts,  of  the  O'Connor  school,  is  his 
peer  in  training  and  success  ;  wonderfully  fluent,  acute, 
far-seeing  and  logical  :  more  of  a  national  character, 
and  less  of  an  advocate  than  his  competitor  for  a  quar- 
ter of  a  century.  He  is  slim,  spare,  with  large  powers 
of  reason,  and  splendid  ability.  He  wins  his  cases  by 
learning  all  the  law,  and  knowing  all  the  fact  that  can 
apply  to  the  trial,  and  never  wearying  in  well-doing. 
No  man  can  excel  him  in  presentation  of  cases  to  a 
court  of  last  resort. 


NEW    YOKE    LAWYERS.  259 

Mr.  Evarts  was  secretary  of  State  under  President 
I  Lives,  is  an  intellectual  New  Englander,  of  clas- 
sical attainments,  equipped  in  all  arts  of  advocacy 
but  magnetism.  Mr.  Evarts  is  a  man  of  marked  in- 
telligence, keen  insight,  marvelous  language  and  mem- 
ory, whose  delivery  is  one  rapid  and  exhaustive  train 
of  logical  reasoning,  positively  convincing  in  its  man- 
ner of  statement  and  conclusion. 

He  has  been  the  attorney  in  more  large  will  cases, 
and  counsel  in  more  matters  of  a  national  nature  than 
any  man  in  America.  Early  in  the  war  he  had  charge 
of  the  Mason  and  Sliddell  matters,  later  in  the  Geneva 
Award,  and  later  represented  the  republican  side  of 
the  Electral  Commission,  and  in  each  case  came  out 
victorious.  He  is  industriou-,  graceful,  fluent,  wise 
and  successful.  To  his  wonderful  memory  of  legal 
principles  he  adds  the  tact  and  acumen  of  a  master 
advocate.  Without  much  of  the  magnetism  of  Beach, 
he  was  an  excellent  match  for  him  in  the  great  Tilton- 
Beecher  trial  in  Brooklyn.  His  whole  tact  in  that 
case  could  never  be  described  better  than  in  a  single 
word,  kindness.  It  is  not  an  uncommon  thing  for  him 
to  accept  a  S20,0<)0  or  $50,000  fee  in  an  important 
will  case. 

Judge  John  K.  Porter,  late  of  the  Guiteau  trial,  is 
one  of  the  old  school  lawyer-  of  New  York.  He  is  not 
a  large  man,  say  about  five  feet  nine,  with  fair  round 
face,  jet  black  eyes,  short  gray  hair  and  moustache,  a 
little  bald  :  erect,  energetic  ingenious.  He  is  subtle 
in  the  arts  of  court  practice.  He  was  not  real  well 
during  the  eleven  weeks  of  the  "  meanest  trial  on 
earth,'*    but    rested    under    instructions    of    an    emi- 


260  TRIAL    PRACTICE. 

nent  doctor,  and  looks  fresh  and  quite  youthful  for  one 
of  sixty-three. 

Judge  Porter  is  an  inveterate  worker.  He  relies 
on  no  one  but  Porter,  takes  his  own  notes,  continues 
in  the  same  plodding,  pains-taking  labor  that  he  did  in 
the  country.  He  carries  his  country  genius  into  the 
city,  and  it  is  said  whether  he  or  Beach  shall  win  de- 
pends on  who  has  the  last  say  to  a  jury. 

His  style  with  a  jury  is  that  employed  by  Paifus 
Choate  —  winning  one  at  a  time.  The  President's 
murderer  mistook  his  man  in  Porter.  The  long  play 
of  words  and  the  ingenious  trap  set  for  the  assassin's 
vanity  w7as  sprung  by  the  advocate  when  he  said  : 
"  Then  you  mean  if  Mrs.  Garfield  had  been  with  the 
President  on  the  2d  of  July  you  would  not  have  shot 
the  President?  "  "  No,  I  would  not,"  said  the  pris- 
oner. "  Then  it  was  Mrs.  Garfield's  presence  that 
restrained  you  once,  and  her  absence  that  let  you 
fire?  "  .  "  Yes,"  said  the  foolish  witness,  and  he  was 
caught. 

William  A.  Beach,  of  the  Beecher  case  fame  has  an 
elegant  office  on  Wall  Street,  high  up  and  reached  by 
elevator.  One  would  not  believe  him  to  be  over  sixty 
by  appearance,  yet  he  is  by  his  own  count  about  sev- 
enty-three. Not  as  large  as  I  expected,  probably  like 
the  boy's  giant  that  he  expected  to  find  as  tall  as  a 
tree,  and  found  but  little  taller  than  his  father.  But 
one  is  charmed  by  the  manner  and  voice  of  Mr. 
Beach.  He,  too,  was  a  country  lawyer,  and  knows 
what  struggles  lawyers  bore  in.  an  early  day.  Now  he 
enjo}'s  large  fees  from  heavy  verdicts  and  national 
fame.      He  is  a  little  above  medium  size  and  height. 


NEW    YORK    LAWYERS. 


2(51 


with  thin  gray  hair,  gray  eyes,  small  chin  whiskers, 
and  a  countenance  a  little  like  Mr.  Beecher's  ;  lighting 
np  with  smiles  or  emotions,  changeable  and  warm.  He 
is  social  and  kind,  able  and  ingenious,  gifted  as  a 
speaker,  and  has  a  way  of  impressing  his  belief  upon  a 
court  and  jury  in  telling  terms.  He  took  me  by  the 
hand  in  a  way  that  said  come  nearer.  He  talks  like 
Beecher.  He  is  to  the  bar  what  Beecher  is  to  the  pul- 
pit— all  original,  and  as  an  advocate  in  New  York,  the 
noblest  Roman  of  them  all. 

Chauncey  Shaffer,    of    New  York,   is   a   lawyer  of 
varied   skill  and  intense  application.     His   mastery  of 
men,  learned  in  the  early  contest^  of  poineer  advocacy, 
is  remarkable.     He  sifts  the  motive  of  human  action  ; 
he  is  a  genius  with  a  natural  rugged  country  way  ;    he 
surprises  a  jury  and  his  adversary  by  quaint  sayings  of 
original  beauty  :  he  relies  on  the  sturdy  sense  of  justice, 
honor  and  fair  play,  and  shows  a  jury  what  they  ought 
to  do,   and   must  do  to  be  just  and  faithful.      He  re- 
moves  obstacles  and  plants   his  cause  on  such  rocky 
piers    of    evidence,    that    opposite    argument     cannot 
change  his  theory.     Few  men  in  New  York  are  more 
dreaded  as  an  adversary,  or  admired  as  associate  counsel. 
He  is  large — about  five  feet  ten — and  weighs  nearly 
200    pounds;    broad    chested,     strong    limited,    with 
smoothly  shaven  fleshy  face,  massive  head,  and  piercing 
gray  eyes  that  retain  their  sparkle  at  the  age  of  over 
sixty-three.     He  is  fluent  and  versatile  in  speech,  and 
jokes  and  illustrates  in  ordinary  suits,  but  never  in 
sacred  cases.      He   wins  his  cases  by  an  old  fashioned 
way  of  saving  homely  things   well.      And   when   all   is 
said,  only  a  half  has  been  told.     You   should  see  him 


262|  TRIAL    PRACTICE. 

with  expanded  chest,  his  eyes,  arms,  face  and  hands 
alive  with  the  fire  of  eloquence,  that  fills  a  court  room 
and  thrills  its  hearers.  When  this  manly  form  is  quiv- 
ering with  the  power  of  a  genius  bursting  into  truths 
through  concentrated  speech,  when  the  man  is  forgotten 
and  his  theme  coining  a  climax.  To  see  him  thus  is  to 
admire  a  style  of  oratory  that  is  rapidly  passing  away, 
which  to  him,  has  secured  an  excellent  clientage  and 
an  enviable  reputation.  His  recent  verdict  of  $30,000 
against  the  Elevated  Railroad  Company  in  New  York, 
obtained  for  injuries  against  great  odds,  is  a  signal 
victory. 

The  following  extract  from  Mr.  Shaffer's  speech  in 
closing  the  Steven's  Poisoning  Case  shows  his  style  of 
jury  work  :  "  This  I  have  taken  time  to  demonstrate 
to  you,  gentlemen,  that  you  should  see  your  way 
clearly.  Do  you  suppose  the  body  had  been  tampered 
with,  when  it  was  taken  by  the  professor  to  his  private 
laboratory  when  it  was  under  lock  and  seal ;  you  will 
remember  that  all  through  the  year  the  body  of  this 
woman  committed  to  the  earth  is  preserved  by  this 
arsenic  within  it.  Nor  did  this  body  absorb  the  poison 
from  the  earth  surrounding  it.  We  have  summoned 
the  earth  surrounding  the  coffin,  and  the  earth  re- 
sponded, '  it  is  not  in  me.'  We  have  called  upon  the 
dead  woman's  shroud,  but  the  shroud  says,  'it  is  not 
in  me.'  We  have  called  upon  her  coffin,  and  the  very 
nails  and  handles  of  that  coffin,  and  each  responds, 
'  arsenic  is  not  in  me.'  And  yet  in  the  body  of  this 
unhappy  woman,  arsenic  is  found,  sufficient  to  preserve 
the  dead  from  decomposition  or  decay  for  a  year. 
Standing  securely  upon  the  immutable  test  of  arsenic 


NEW    YORK    LAWYERS.  263 

we  cannot  err.     Thus  science  has  testified  to  the  awful 
fact  that  this  woman  died  from  arsenious  poison. 

"  You  have  heard  all  this  chemical  evidence,  how 
arsenic  passes  through  the  system,  and  how  it  is 
absorbed,  how  it  remains  two  to  four  days  unless  death 
intervenes,  and  how,  when  death  intervenes,  it  fastens 
itself  in  the  portions  of  the  body,  follows  its  victim  and 
lays  down  in  the  grave  to  preserve  the  natural  body. 
Here  are  the  pieces.  Here  are  the  tests.  There  is  the 
metalic  stain.  Arsenic  has  killed  its  victim.  The 
metalic  stain  in  tube  number  seven  glows  with  the  lustre 
of  the  deadly  mineral.  Dr.  Doremus  applied  every 
test  to  that  body,  and  that  body  through  the  voice  of 
science  responds  :  In  me  are  the  seeds  of  death.  Four 
to  six  grains  of  the  deadly  poison  have  been  found  and 
preserved.  One-fourth  of  a  grain  has  been  known  to 
kill  a  person.  His  closing  in  this  case  was  substan- 
tially as  follows:  "I  shall  make  no  further  attempt 
to  increase  your  sense  of  your  present  responsibility. 
I  will  not  plant  my  foot  upon  the  grave  of  a  murdered 
woman  and  call  for  vengeance.  Vengeance  is  not 
mine.  If  I  could,  I  would  not  again  ask  you  to  go 
over  the  journey  of  pain,  and  review  the  torture,  or 
listen  to  the  low  moans  of  patient  agony :  to  the 
prayer  for  peace  of  one  who  is  free,  and  we  trust  in 
that  home  above  the  sun,  where  pain  and  torture 
are  no  more.  But  I  will  ask  you  as  men,  as  hus- 
bands and  fathers,  as  good  citizens,  to  be  brave,  to 
trouble  not  yourselves  with  consequences,  to  be  daring 
in  duty,  to  remember  your  oaths  and  how  you  are 
pledged  to  God  and  your  country  to  make  thorough 
this  investigation  and   impartially  to    weigh  this  evi- 


264  TRIAL    PRACTICE. 

dence,  and  arriving  at  the  truth,  the  whole  truth  and 
nothing  but  the  truth,  fearlessly  to  declare  the  same, 
thereby  discharging  your  whole  duty  to  the  people  and 
to  the  prisoner  of  giving  him  the  benefit  of  all  reason- 
able doubts,  and  may  justice  be  done,  though  the  heav- 
ens fall." 

Joseph  Choate,  of  New  York,  a  nephew  of  the  well 
known  Iiufus  Choate,  is  what  we  call  a  clean  cut,  clear 
headed  lawyer,  of  excellent  success  in  practice.  Tall, 
erect,  of  fine  presence  and  attractive  voice,  he  is  clear, 
lucid  and  forcible  in  trials,  and  wins  many  cases.  He 
has  rather  a  striking  face,  high  .forehead,  blue  gray 
eyes,  brown  hair,  and  small  side  beard  —  a  man  of 
some  forty  years,  who  handles  his  cases  with  studied 
care  and  extreme  clearness.  In  argument  to  the  jury 
Mr.  Choate  seems  to  give  much  time  to  explanation, 
while  this  may  seem  needlessly  prolonged  to  many,  it 
is  the  practice  that  wins  a  law  suit.  It  is  said  of  Mr. 
Choate  that  he  is  at  times  eloquent,  always  earnest, 
and  that  his  simplicity  of  statement  is  his  rare  gift  of 
reaching  a  jury. 

Judo;e  George  M.  Curtis,  of  New  York,  one  of  the 
brightest  advocates  of  the  American  bar,  was  born  in 
Massachusetts,  June  18th,  1843.  Served  in  the  Union 
army  in  the  late  war.  Studied  law  with  Hon.  John  W. 
Ashmead.  Was  admitted  on  reaching  his  majority, 
and  elected  to  the  State  Legislature  where  he  took  a 
high  rank.  Was,  later,  Assistant  Corporation  Attor- 
ney of  New  York,  and  still  later  served  a  six  }rears 
term  as  Judge  of  the  Marine  Court. 

In  practice,  few  men  of  his  age  have  been  so  promi- 
nent in  important  cases.      He  has  appeared  in  fifteen 


NEW    YORK    LAWYERS.  265 

murder  eases,  in  which  none  of  the  accused  were  hung, 
and  all  but  four  absolutely  eleared. 

He  defended  Helmbold  on  a  charge  of  insanity,  and 
cleared  him  ;  appeared  in  the  Frank  Leslie  Will  Case, 
and  the  famous  Buford-Elliott  Kentucky  case.  In  the 
Bouden  Will  Case  he  established  the  doctrine  that  a 
man  in  the  last  stages  of  Bright's  disease  was  incom- 
petent to  make  a  will. 

It  is  said  that  he  never  lost  a  case  where  he  had  the 
last  say  to  the  jury.  His  recent  signal  victory  was  of 
Neville  v.  Hitchcock,  of  the  Fifth  Avenue  Hotel, 
where  for  a  week  he  was  opposed  by  Joseph  Choate,  a 
brilliant  descendant  of  the  great  Boston  lawyer,  in 
•which  contest  Judge  Curtis  was  triumphant. 

He  i-  thoroughly  at  home  in  fraud,  malpractice  and 
insanity  cases,  and  often  makes  briefs  for  older  law- 
yers. If  there  is  a  born  orator  in  New  York,  it  is 
Curtis,  and  his  style  i-  a  marvel.  Never  taking  notes, 
but  thinking  out  his  subjects.  He  is  extremely  fluent 
and  forcible  a-  a  debater  and  "Stump  orator."  Per- 
sonally only  forty  years  of  age,  a  little  over  the 
medium  height,  rather  heavy  build,  but  well  pro- 
portioned, with  smoothly-shaven,  strong  face,  like 
Napoleon's. 

His  clarion  voice  is  deep  and  musical.  Having  long 
been  an  editorial  writer  (once  on  Leslie's  Pictorial)^ 
he  is  ready  in  apt  and  appropriate  language.  His  long 
service  on  the  bench,  makes  him  ready  in  practice,  but 
with  all  his  gifts  of  advocacy  he  has  but  one  rule  :  "A 
thorough  preparation  in  evidence  and  law  of  every 
case,  diligence  in  enforcing  both,  with  the  tone,  man- 
ner, and  conduct  of  a  gentleman." 


2<!6  TRIAL    PRACTICE. 

He  declined  four  times  a  nomination  for  Congress  ; 
declined  a  nomination  for  the  Common  Pleas,  and 
Superior  Court. 

George  Bliss,  of  New  York,  who  has  attained  a  na- 
tional reputation  through  the  Star  Route  cases,  and  a 
previous  good  record  as  United  States  District  Attor- 
ney, began  practice  in  New  York  City  in  1856,  where 
he  ranks  as  one  of  the  shrewdest  counsel  and  advocates. 

He  is  excedingly  able  in  preparing  the  proofs  and 
pleadings  in  intricate  cases,  and  equally  at  home  in  ar- 
gument to  court  or  jury.  Trained  in  a  large  city 
practice,  he  is  a  ripe  scholar  and  industrious  worker. 
Ready,  fluent  and  decisive  in  speech,  quick  and  keen 
in  replies,  in  person  below  the  medium  height,  in  man- 
ner candid,  and  direct  in  reasoning,  he  is  a  marked  man 
in  a  court  room.  His  hair  is  thick  and  turning  gray, 
eves  sharp  and  piercing,  face  warm,  clean-shaven,  save 
a  short  moustache  ;  in  conduct  genial  and  companion- 
able, he  is  a  complete  master  of  his  subject,  its  arts, 
points  and  changes,  and  has  made  a  tine  fortune  in  his 
practice,  and  is  still  youthful  and  vigorous  in  looks  and 
actions. 

His  frequent  connection  with  political  questions  has 
done  much  to  create  a  newspaper  fame  throughout  the 
Union.  But  of  this  he  is  deserving.  In  practice  he 
gets  to  the  real  meat  of  cases,  and  commits  the  salient 
parts  to  memory.  In  trials  he  is  quiet  and  energetic, 
making  accurate  moves,  and  taking  tenable  positions, 
adheres  to  them  with  great  tenacity.  His  success  is 
due  to  constant  application  of  good  natural  ability  and 
a  name  for  winning  cases.  He  is  one  of  a  choice  few 
millionaire  lawyers. 


NEW    YORK   LAWYERS.  267 

David  Dudley  Field,  a  man  of  mature  years,  marly 
sixty-five,  tall,  graceful,  with  side  beard,  worn  after 
the  English  fashion,  is  a  marked  figure  in  the  New 
York  and  Washington  court  rooms.  Mr.  Field  is  all 
original,  a  keen,  watchful  and  successful  trial  lawyer, 
that  aids  his  client's  cause  by  his  adroitness,  skill,  and 
sturdy  sense  of  justice.  He  found  the  New  York 
forms  too  cumbersome  to  suit  a  city  practice,  as  with 
a  keen  knife  he  cut  the  knot  instantly,  and  the  whole 
code  practice  with  its  simple  forms  sprang  into  life  and 
be  i  ng. 

This  daring  innovation  made  him  early  recognized 
as  an  original  and  comprehensive  counsel.  It  is  to  him, 
as  though  he  had  coined  the  statutes  of  practice  out 
of  his  fertile  mind  to  suit  his  rapid  thought  and  sensi- 
ble conclusions  that  forms  were  often  stumbling- 
blocks  to  courts  and  a  hindrance  to  progress  in  trials, 
without  any  object  in  the  end  gained  in  useless  con- 
troversy. This  single  act  will  immortalize  David  Dud- 
ley Field  in  New  York  State. 


268  TRIAL    PRACTICE. 


CHAPTER  XXIV 


THE    CHICAGO   BAK. 


Lawyers  are  lost  in  the  courts  of  Chicago  much  as 
they  are  in  New  York.  Many  are  called  and  few  are 
chosen.  The  bar  is  very  full,  and  the  practice  exceed- 
ingly rapid.  To  even  be  known  as  a  lawyer  in  Chicago 
requires  live  years  residence. 

Of  those  who  have  attained  success  and  national 
mention  are  Secretary  of  War  Lincoln,  Leonard  Swett, 
John  Van  Annan,  E.  S.  Isham,  Emery  Storrs,  Col. 
Munn,  Ex-Senator  Doolittle  and  Wirt  Dexter,  with 
many  more  less  generally  known  outside  of  Illinois. 

Wirt  Dexter  is  a  wealthy  business  lawyer  who  can, 
and  often  does  try  criminal  cases.  Nearly  fifty,  above 
medium  size,  large  head,  full  brown  beard  tinged  with 
gray,  heavy  brown  hair,  a  dignified  bearing,  large,  ex- 
pressive eyes,  a  voice  like  an  actor  and  finely  modu- 
lated. His  speeches  are  ripe  in  scholarly  quotations, 
pure  in  diction,  and  exceedingly  impressive.  Few 
lawyers  try  a  case  with  more  skill,  adroitness  and 
energy.  Born  to  the  law,  his  father  a  judge,  and 
trained  in  a  large  city  practice  he  has  but  one  ambi- 
tion—  to  excel  in  his  profession  and  acquire  riches. 
He  has  done  both  while  yet.  young.     His  services  are 


CHICAGO    LAWYERS.  26$ 

sought  for  in  1  umber  and  corporation  cases,  and  he  is  quite 
at  home  in  any  branch  of  practice  that  pays  handsomely. 

How  docs  he  win  his  cases?  It  is  by  a  combined 
force  of  courage,  character,  work  and  eloquence.  A 
large,  fine  commanding  presence,  .with  candid,  plain 
farmer-like  dress  and  appearance  —  exceptionally  so 
iu  dress  —  he  stands  before  a  jury  like  a  general  in 
battle  and  expects  a  verdict.  He  is  one  of  the  counsel 
who  win  cases  on  their  reputation  :  you  know  this  is 
not  unfrequently  done.  But  he  never  trusts  alone  to 
high  standing  :  he  masters  the  case  first,  and  the  court 
afterward-. 

John  Van  Annan,  of  sixty- six,  a  short,  heavy, 
smooth  faced  man,  who  acquired  a  reputation  years 
ago  in  the  Conspiracy  Case  mentioned  at  length  in 
"Modern  Jury  Trials,"  has  continued  to  lead  the 
Chicago  bar  as  a  criminal  lawyer  ever  since.  Although 
many  good  advocates  have  done  the  best  of  service,  it 
is  reserved  to  Van  Annan  to  be  the  best  known  crim- 
imal  lawyer  in  the  West.  He  it  was  who  ate  the 
poisoned  cake  to  show  the  jury  it  was  not  full  enough 
of  arsenic  to  kill  defendant'-  husband.  He  it  was 
that  tried  all  the  hooks  to  find  one  strong  enough  to 
hold  a  human  body,  and  cleared  another.  He  saved 
Vanderpool  from  a  life  sentence  after  he  was  in 
prison,  and  gained  him  trials  enough  to  finally  acquit 
his  client  of  murder.  He  worked  and  measured  in 
coal  mines  three  days  in  Ohio  to  study  his  case  and 
win  it.  A  month  or  two  is  not  an  unusual  thins  for 
Mr.  Van  Annan  to  tit  him  for  a  victoiy.  His  speech 
in  the  Burch  Divorce  Case  was  a  masterly  effort,  as  all 
his  great  speeches  are. 


270  TRIAL    PRACTICE. 

He  is  a  born  lawyer,  with  a  genius  a  little  like  that 
1  of  Benjamin  F.  Butler,  now  one  of  the  greatest  advo- 
cates in  America.    Far-seeing  ingenuity,  close  examina- 
tion of  facts,  accurate  knowledge  of  tine  practice  and 
great  will  power  win  his  cases. 

Emery  A.  Storrs,  the  gifted  speaker,  political 
orator  and  brilliant  advocate  of  Chicago,  has  a  great 
following  in  jury  practice.  Much  below  medium  size 
and  height,  he  is  not  far  from  fifty,  has  a  most  excel- 
lent delivery,  rapid  and  fluent  almost  to  the  bewilder 
ment  of  many  juries.  There  is  no  man  living  east  or 
west  who  can  speak  faster  or  compose  more  rapidly. 
To  him  it  is  a  gift  to  speak  ;  as  a  minister  or  lecturer 
he  would  have  had  packed  audiences.  His  voice  is 
clear,  penetrating  and  distinct  as  a  triangle  in  a 
band.  He  is  highly  rhetorical  and  intensely  dram- 
'  atic  in  gestures,  seeming  to  grow  and  expand  with 
his  theme,  and  magnetize  his  hearers.  In  this  de- 
partment—  advocacy  —  he  is  a  tower  of  strength 
and  of  great  value  in  closing  cases.  Speaking  is  his 
specialty.  He  wins  by  it.  He  doubtless  did  much  to 
elect  Garfield  in  1880  by  his  Burlington  speech  about 
the  danger  of  a  change  of  parties,  a  risk  of  making  a 
new  Supreme  Court  through  nine  more  judges,  and 
an  increase  of  senators,  with  all  the  evils  of  the 
vivid  picture  he  then  portrayed.  In  the  Babcock 
Conspiracy  Case  he  made  a  fine  argument.  In  the 
Cochrane  Murder  Case  of  Wisconsin  he  cleared  the 
prisoner  on  the  theory  that  "courts  and  statutes 
were  ever  powerless  to  restrain  a  man  from  revenge 
irhen  Ids  /tome  rights  were  invaded  by  the  se- 
ducer."1 


CHICAGO    LAWYERS.  271 

Robert  T.  Lincoln,  oldest  son  of  the  lamented  Pres- 
ident, lawyer  and  greatest  of  Illinois  advocates,  is 
under  forty,  dark  hair  and  eyes,  full  short  dark  beard, 
and  very  young  in  appearance.  His  manner  is  candid, 
his  words  choice  and  appropriate,  his  briefs  pointed 
and  well  arranged.  He  wins  suits  (when  at  Chicago) 
by  his  own  industrious  application  and  the  rare  skill 
of  his  associate,  Mr.  Isham,  who  has  long  been  his 
law  partner,  and  longer  been  one  of  the  best  lawyers 
in  Illinois,  ranking  with  Leonard  Swett  as  the  finest 
Supreme  Court  counselors  of  the  northwest.  Neither 
are  much  given  to  advocacy  of  late,  having  scarcely 
time  in  their  immense  higher  court  practice  and  corpor- 
ation business.  Both  Isham  and  Swett  have  ever  been 
brilliant  advocates,  both  are  eloquent  and  ingenious, 
but  require  a  case  and  fee  of  considerable  magnitude 
to  tempt  them  from  their  business  clientage.  They 
each  have  line  offices  on  high  floors,  and  charge  in  pro- 
portion to  their  practice.  They  are  to  Chicago  what 
O'Connor  and  Evarts,  of  New  York,  are  to  their  city, 
the  leaders  of  their  profession,  and  need  no  introduc- 
tion. In  the  counsels  of  the  nation  where  they  should 
be,  or  in  positions  like  Secretary  Lincoln,  they  would 
either  make  a  name  in  Washington. 

Leonard  Swett,  of  Chicago,  an  advocate  of  national 
fame,  was  born,  reared  and  educated  in  Maine,  and  is 
about  fifty-eight  years  of  age  ;  a  gentleman  of  varied 
culture  and  learned  in  law  ;  commanded  a  company  in 
the  Mexican  war;  came  to  Illinois  in  1848  and  located 
at  Bloomington,  commenced  the  practice  of  law  there, 
and  has  since  had  a  noteworthy  career,  becoming 
widely  known  in  the  State  for  his  ability  and  success  as 


272  TRIAL    PRACTICE. 

an  advocate,  and  was  recognized  as  a  leader  among 
sueli  distinguished  lawyers  and  advocates  as  Abraham 
Lincoln  (of  whom  he  was  an  intimate  friend  and 
adviser  to  the  day  of  his  assassination),  Douglas, 
Logan,  Stuart,  Linder,  Baker,  Hanuagan,  and  others 
prominent  at  that  time.  He  was  a  recognized  leader 
in  the  whig,  as  he  is  now  in  the  republicau  party.  In 
personal  appearance  he  has  a  tine  natural  presence, 
tall,  erect,  dark  hair,  intermingled  with  gray,  well 
formed,  of  large  frame  and  commanding  figure,  with 
great  physical  and  mental  energy  ;  his  face  indicates 
refinement  and  culture  as  well  as  firmness  and  decision 
of  character.  He  combines  many  qualites  rarely  found 
in  combination.  He  has  signalized  himself  by  many 
remarkable  achievements  as  defender,  especially  in 
criminal  trials,  having  lost  but  one  out  of  nineteen 
great  and  important  murder  cases  in  which  he  de- 
fended. It  is  only  in  great  trials,  when  lib;  is  at 
stake,  or  innocence  is  assailed,  that  he  rises  to  the  im- 
portance of  the  occasion,  and  is  at  his  best,  and  the 
great  resources  of  his  mind  are  brought  out.  He  is 
then  inspired  with  the  highest  order  of  eloquence.  Hi- 
style  is  a  combination  of  all  that  was  best  in  the  Gre- 
cian and  Oriental  oratory — the  compactness,  perspi- 
cuity and  elegance  of  expression  of  the  former,  and 
the  bright  coloring  and  vivid  phrase  of  the  latter.  He 
is  accomplished  and  learned  in  jurisprudence  and  po- 
litical philosophy,  acute  and  alert  of  mind,  and  a  mas- 
ter of  brilliant  and  lucid  expression,  and  an  ornament 
to  the  bar  of  this  country  —  a  beam  of  light  in  the 
midst  of  that  prosaic  monotony  which  too  often  hovers 
around  our  courts  unrelieved  by  style  and  unadorned 


CHICAGO    LAWYERS.  '212) 

by  eloquence.  Everything  is  brought  to  bear  on  his 
life  work  as  a  lawyer.  No  learning  or  truth  too  great, 
no  beauty  too  choice  for  his  employment  as  an  advo- 
cate. Vigilant,  industrious  and  zealous,  he  could  not 
but  attain  the  success  h  has.  His  capacity  is  as  con- 
spicuous as  his  industry  is  untiring.  The  majesty  of 
the  law  has  in  him  a-  courageous  a  defender  as  it  has 
an  able  and  clear  exponent.  He  is  an  orator  in  the 
highest  sense  ;  his  subject  matter  is  always  excellent ; 
his  audience  is  charmed  with  the  richness  and  vivid- 
ness of  his  imagery,  the  beauty  of  his  sentiments,  and 
his  happy  illustrations  of  his  propositions  —  that  kind 
of  eloquence  which  captivates  and  convinces  by  the 
force  of  Ionic  well  put  ;  a  brilliancy  ami  eloquence 
which  he  sustains  to  the  end.  He  i-  always  self-pos- 
-  -  1.  and  prepared  for  any  emergency  that  may 
arise  in  a  trial.  He  i-  one  of  the  most  suceessfnl  ad- 
vocates in  this  country.  His  name  will  live  in  the 
annals  of  the  court-  as  an  illustration  and  example  of 
a  powerful  and  successful  advocate. 

Luther  L.  Mills,  State  Attorney  for  Cook  County, 
Illinois,  is  but  little  past  thirty  year-  of  age,  and  ac- 
knowledged to  be  one  of  the  most  forcible  advocates 
of  hi.-  age  in  the  west.  In  personal  appearance  and 
make-up,  and  oratorical  powers  he  is  of  the  Henry 
Clay  type.  He  was  born  in  Massachusetts  and  edu- 
cated in  Chicago  and  Ann  Arbor,  Michigan.  He  is 
small  in  stature,  but  strong  in  intellect  :  graceful  in 
gesture,  a  clear  and  modulated  voice,  and  has  other 
qualities  of  a  natural  orator  :  clear,  ringing  and  forci- 
ble speech  ;  in  style  varied,  logical,  eloquent,  pathetic, 
and  hence  impres-ive  :  vivid  in   statement,  graphic  in 

(18) 


274  TRIAL    PRACTICE. 

description.  He  is  sagacious  in  argument  as  a  prose- 
cutor of  criminals,  and  usually  ends  on  a  salient  point, 
and  gains  an  advantage.  He  has  made  his  way  at  the 
bar  by  uniformly  courteous  and  upright  conduct,  with 
fairness  and  sincerity  in  his  management  ;  he  is  always 
earnest,  is  popular  with  the  profession  and  the  public, 
and  is  in  the  true  sense  a  natural  advocate. 

In  the  Sherry  and  Connolly  murder  trial,  resulting 
in  the  hanging  of  both,  Mr.  Mills,  in  closing  the  case, 
said  : 

"And  now,  gentlemen  of  the  jury,  if  guided  by  a 
true  sense  of  justice1,  and  an  inflexible  devotion  to 
law,  I  entertain  not  the  slightest  doubt  that  you  will 
upon  Jeremiah  Connolly  and  George  Sherry,  for  the 
murder  of  Hugh  McConville,  inflict  the  extreme  pen- 
alty of  the  law.  This  is  no  time  for  sentimentality. 
This  is  no  time  to  stand  upon  mere- sentiments,  sensi- 
bilities and  sympathies.  The  time  has  come  in  this 
community  when  law  must  be  absolutely  fearless, 
always  executed. 

"  Death  is  indeed  the  solemnest  incident  of  life.  It 
is  to  prevent  death  that  I  make  the  request  of  you  in 
behalf  of  the  public  that  I  now  do.  It  is  to  prevent  a 
hundred  deaths,  perhaps,  in  this  community  in  the  next 
twelve  months  ;  it  is  to  tell  lawless  men  and  murderous 
ruffians  that  there  is  a  law  in  this  community,  and  they 
cannot  trample  upon  that  law  without  being  punished. 
Through  the  class  of  men  —  if,  indeed,  there  is  such  a 
class — to  which  Sherry  and  Connolly  belong,  your 
verdict  will  send  a  thrill  of  terror,  and  the  murderous 
faces  will  grow  white,  and  the  burglars  will  be  cautious 
how  they  do  their  crime,  and  the  highwaymen  will  flee 


CHICAGO    LAWYER- .  275 

for  safety  into  low,  chirk  places,  and  away  from  this 
beautiful  city.  Let  us  then  have  an  example,  legally, 
justly,  rightfully  ;  the  evidence  and  the  law  of  this 
case  warrant  and  demand  it,  and  the  blessings  of  the 
community  will  be  showered  upon  your  heads.  Of 
late  years  human  life  has  been  altogether  too  cheap  ;  a 
community  of  bargain,  sale  by  the  passion,  and  malice 
of  murderers.  It  is  a  solemn  thing,  the  fact  of  death  ; 
it  is  a  solemner  thins;  that  there  should  be  so  many 
murders  happening  in  the  city  of  Chicago. 

"  The  law  must  be  executed  ;  and  in  this  case,  be- 
cause the  crime  is  the  most  brutal  murder  ever  perpe- 
trated in  this  city,  the  penalty  should  be  the  very 
hardest  in  its  severity.  Did  you  ever  hear  or  read  in 
any  records  of  a  more  atrocious,  horrible  and  lawless 
conduct  than  that  of  these  two  men  on  that  Saturday 
nijlht  that  culminated  in  the  brutal  murder  of  Hush 
MbConville?  You  never  did.  It  is  the  last  day  of  the 
week.  The  twilight  of  Saturday.  To-morrow  will 
be  the  blessed  day  of  our  Lord,  appointed  by  Divinity 
for  the  worship  of  Him,  and  for  seeking  to  obtain 
from  Him  such  inspiration  as  shall  make  men  better 
for  the  days  of  labor  after,  and  returning  thanks  to 
heaven,  and  I  do  believe,  gentlemen  of  the  jury,  that 
the  horrrible  atrocity  which  characterizes  this  crime, 
and  the  joint  guilt  of  these  two  defendants  being  fully 
submitted  to  absolute  divine  justice,  so  far  as  you  can 
perform  it  in  a  human  way,  will  be  done  unto  them, 
and  that  on  the  morrow,  in  your  homes,  with  your 
wives  and  children,  you  will  feel  like  falling  upon  your 
knees  in  the  presence  of  your  household  surroundings, 
and  thanking  heaven  that  you  have  had  an  opportunity, 


276  TRIAL    PRACTICE. 

in  behalf  of  outraged  law,  in  behalf  of  the  rights  of 
human  nature,  in  behalf  of  the  the  law  of  God  himself, 
to  do  an  act  which  Jehovah  will  approve,  he  who  is  the 
source  and  fountain  of  all  justice  and  righteousness." 

In  the  case  of  Dr.  Charles  Earll,  convicted  of  abor- 
tion, and  sentenced  to  the  penitentiary,  Mr.  Mills 
closing  was  :  "No  man  for  a  moment  can  doubt  the 
guilt  of  Charles  Earll  of  an  attempt  to  commit  an  abor- 
tion. Indeed,  it  is  almost  confessed  when  the  defense 
claims  that  the  red  handed  abortionist  was  simply 
trifling  with  the  girl.  That  he  caused  her  death,  no 
reasoning  man  using  his  best  judgment,  can  for  an  in- 
stant doubt.  What  should  be  done  with  this  red  handed 
abortionist?  The  lesson  that  the  jury  taught  the  abor- 
tionest  in  1879  was  all  too  soon  forgotten.  Why  was 
not  that  lesson  obeyed?  When  a  merciful  jury  let 
Charles  Earll  go  with  the  slight  punishment  of  one- 
year's  imprisonment,  he  ought  to  have  given  up  the 
damnable,  murderous  business  of  committing  abor- 
tions, but  he  heeded  not  the  teaching  of  that  lesson. 
He  resumed  the  business,  and  he  killed  another  girl  by 
his  bungling  murderous  work. 

I  submit,  gentlemen  of  the  jury,  you  are  men,  and 
citizens,  and  jurors,  and  that  it  is  now  high  time  to 
teach  Charles  Earll  that  proper  punishment  shall  follow 
his  horrid  business  of  committing  abortion,  and  mur- 
der. I  submit  that  no  light  penalty  is  adequate.  He 
goes  about  this  abortion  enterprise  coolly  and  deliber- 
ately. When  he  takes  the  young  girl  into  his  hands,, 
he  plays  with  her  life  as  the  child  plays  with  the  bub- 
ble in  the  summer.  What  cares  he  for  the  risk  that  is 
run :  what  cares  he  for  the  clanger  staring  the  victim 


CHICAGO    LAWYERS.  277 

in  the  face?     He  wants  monev,  money,  money  ;  blood 
money  for  his  bread  and  butter. 

I  have  said  that  I  was  honored  by  having  a  better 
clientage  than  the  counsel  for  the  defense.  He  defends 
■Charles  Earll  well,  ingeniously,  skillfully,  and  to  the 
best  of  his  ability.  His  client  is  our  man.  The  cli- 
entage I  have  the  honor  to  protect  is  the  great  com- 
munity, husbands,  wives  and  children — the  six  hundred 
thousand  people  who  are  watching  every  movement  of 
this  great  trial,  and  who  are  hanging  .breathless  on 
these  proceedings.  We  are  nearly  through  with  the 
■case.  After  five  long  days,  we  shall  to-night,  when 
the  curtain  falls  on  the  stage  of  the  day,  return  to  our 
homes.  Each  one  of  us  this  night  will  gather  the  true, 
loving  wife,  and  the  fond  little  children  around  the 
fireplace,  and  there  shall  be  great  welcome  for  each 
man's  heart,  and  before  the  blazing  beauty  of  the  fire 
there  shall  be  read,  some  sermon  by,  and  of  the  christ 
child,  for  the  children,  or  something  from  that  noblest 
book  of  books,  the  bible  of  our  faith,  and  then  around 
the  dear  old  mother's  knee  the  little  ones  in  white 
dresses  for  the  night  shall  sa}'  their  prayers,  and  quietly 
:go  to  their  rest  ;  and  in  the  secret  ear  of  her  who  is 
the  genius  of  your  heart's  idolatory,  you  will  whisper 
the  secret  of  the  life  of  the  last  few  days,  and  then  I 
trust  you  will  be  able  in  all  solemnity  to  offer  a  prayer 
of  thanksgiving  to  the  God  who  protects  us  all,  because 
you  have  done  your  duty  as  men,  and  as  jurors ; 
because  by  punishing  a  red  handed  abortionist,  you 
have  vindicated  the  law  and  protected  the  honor  of 
home,  and  have  put  the  strong  right  arm  of  your  ver- 
dict around  the  sanctity  of  woman. 


278  TRIAL    PRACTICE. 

In  the  John  Lamb  case,  accused,  once  convicted  of 
the  murder  of  police  officer  Koce,  in  1879,  Mr.  Mills 
said  in  closing  :  "  Gentlemen,  I  make  an  appeal  to  you,, 
not  in  behalf  of  the  police  department ;  not  in  behalf 
of  any  gentlemen  connected  with  it,  like  the  noble 
Dixon,  and  the  good  Seavey,  and  all  the  brave  officers 
who  knew  and  loved  Albert  Eoce  ;  I  make  no  appeal 
to  you  in  behalf  of  that  wrinkled,  grey  haired  old 
mother  in  Ohio,  who  to-night  will  sit  with  head  bent 
over  her  knees,  looking  into  the  dying  embers  of  the 
old  fire  place,  waiting  for  the  returning  steps  that  never 
will  come  back,  and  craving,  perhaps,  a  sweet  mother 
song  of  love,  which  was  a  blessing  over  her  child's 
cradle,  and  now  as  a  bright  benediction  over  his 
grave.  For  indeed,  when  the  young  wife  dies,  like  the 
lily  in  the  heat  of  the  day,  and  the  violet  children  are 
hidden  in  the  valley,  and  the  hoary  headed  sire  dies  in 
ripeness  of  years,  there  remains  often  times  the  dear 
old  mother  ;  and  so  Koce's  mother  now  remains,  but 
not  alone  for  her  do  I  plead  ;  I  plead  for  law  ;  I  plead 
for  the  protection  of  human  life ;  I  plead  for  the 
honor  of  this  people  ;  I  plead  for  the  men,  the  women,, 
and  the  little  children  that  to-night  are  in  danger  from 
the  masked  ruffians  who  infest  our  towns,  and  so  I 
beg  of  you,  gentlemen,  to  have  your  verdict  quick,, 
sharp  and  decisive.  Let  it  come  like  a  thunderbolt — 
quicker  than  the  Hash  of  lightning,  which,  in  the  heat 
of  the  summer,  God  makes  use  of  to  purify  the  air 
from  pestilential  vapors,  and  make  way  for  the  glory 
of  the  coming  of  the  rainbow  of  peace. 

Hon.  James    R.    Doolittle,   of  "  Chicago,    advocate,, 
jurist  and  statesman,  is  a, man  of  national  fame.     He 


CHICAGO    LAWYERS.  279 

has  been  counsel,  judge,  United  States  Senator,  and  is 
now  an  advocate.  He  was  born,  reared  and  educated  in 
Central  New  York,  and  is  somewhere  in  the  sixties. 
In  personal  appearance  he  is  tall,  erect,  grey  hair  and 
beard  ;  a  large  frame  and  great  physical  and  mental 
energy.  He  has  signalized  himself  by  many  remark- 
able achievements  in  the  higher  courts.  It  is  only  in 
threat  trials  that  he  is  at  his  best,  and  the  sreat  re- 
sources  of  his  mind  are  brought  out.  He  then  pours 
out  strains  of  the  highest  order  of  eloquence  ;  idea  fol- 
lows idea,  principle  succeeds  principle,  illustration  ac- 
companies illustration  with  rapidity.  He  is  an  accom- 
plished orator,  and  an  able  and  effective  advocate  ;  he 
states  his  cause  in  winning  language  —  of  which  he  is 
master — and  in  an  engaging  manner;  then  inveighs 
in  telling  and  in  tones  which  resound  through  the 
room  against  his  client's  opponent.  His  subject-matter 
is  always  excellent,  and  his  audience  is  charmed  with 
the  richness  of  his  fancy,  the  beauty  and  force  of  his 
sentiment,  his  happy  illustration  and  his  persuasive 
logic  and  eloquence  by  which  minds  are  controlled. 
His  gestures  are  easy,  appropriate  and  graceful ;  there 
is  nothing  turgid  or  mysterious  in  his  style ;  the 
grace  and  propriety  of  his  delivery  are  equal  to  the 
copiousness  and  felicity  of  his  diction.  The  tones  of 
his  well  modulated  voice  are  clear  and  full,  and  his 
manner  and  action  are  energetic  without  verging  on 
that  extravagance  which  is  unpleasant.  He  is  a  suc- 
cessful advocate. 

In  the  Forsythe  case,  just  ended,  Mr.  Doolittle  re- 
covered $40,000  in  personal  fees,  the  largest  fee 
ever  awarded  any  lawyer  by  a  jury. 


280  TRIAL    PRACTICE. 

Col.  Daniel  W.  Muuu,  of  Chicago,  is  an  able  and 
successful  criminal  lawyer,  and  a  rhetorical  advocate. 
He  was  born  and  educated  in  Vermont ;  is  about  fifty 
years  of  age.  He  is  of  large  frame,  erect,  with  dark 
hair,  eyes  and  complexion  ;  with  a  commanding  and 
impressive  presence  ;  an  earnest,  impassioned  and  elo- 
quent speaker,  with  a  clear,  ringing  voice  and  other 
good  qualities  of  an  orator.  In  style  he  is  logical, 
vivid  and  forcible. 

His  success  as  a  criminal  lawyer,  in  defending  and 
prosecuting,  is  marked  and  noteworthy  ;  he  is  sagacious 
in  the  management  of  his  cases,  and  enjoys  a  large  prac- 
tice ;  has  accumulated  a  competency,  and  attained  success 
in  the  prime  of  life.  He  has  been  a  legislator  and  army 
officer,  and  is  still  in  the  full  vigor  of  early  manhood. 

A  paragraph  from  Munn's  speech  in  the  late  Dunn 
murder  case, shows  his  florid  style  of  imagery  : 

"A  miracle  that  Dunn  was  not  killed,  as  great  as 
any  miracle  in  Holy  Writ  —  equal  to  that  of  Joshua, 
who  reached  up  and  took  the  sun  by  its  golden  bit, 
and  the  moon  by  its  silver  bridle,  and  stayed  the 
course  of  time  !  As  great  as  the  preservation  of  Dan- 
iel in  the  lion's  den.  Daniel  came  out  untouched  and 
unharmed,  while  Dunn  was  mangled  and  wounded  by 
the  brute  that  was  in  that  den  of  pollution  —  that  house 
of  prostitution,  with  a  bar  and  restaurant  attached, 
the  doors  of  which  are  open  night  and  day  —  never  en- 
tered by  virtuous  women  and  but  few  respectable 
men  —  presided  over  by  the  self-acknowledged  tramp, 
gambler  and  vagrant:   "Appetite  Bill." 

William  P.  Black,  of  the  law  firm  of  Dent  &  Black, 
of  Chicago,   is  among  the   younger  lawyers  of    that 


CHICAGO   LAWYERS.  281 

■city  taking  prominent  rank  for  oratorical  ability  and  as 
advocate.  He  is  of  the  age  of  forty  years,  and  has 
been  at  the  bar  some  sixteen  years,  having  completed 
his  law  studies  after  serving  in  the  late  Civil  War. 
He  is  six  feet  in  height,  erect,  with  black  hair,  now 
somewhat  silvered  ;  has  an  easy  bearing  and  good  ad- 
dress, and  a  fine  flow  of  language.  He  is  versatile  and 
logical  in  speech,  and  comes  directly  to  the  point,  lay- 
ing down  his  propositions  clearly,  and  sustaining  them 
with  great  clearness  and  fine  power  of  expression ; 
demonstrating  his  views  very  clearly,  and  sustaining 
them  by  all  the  arguments  which  can  be  brought  to 
bear  in  his  favor.  He  is  quick  to  perceive  the  drift  of 
evidence,  and  to  take  hold  of  any  strong  points  which 
arise,  and  readily  applies  authorities.  He  decides 
promptly  what  course  to  pursue,  and  thinks  while  on 
his  feet.  He  distinguishes  with  great  skill  the  argu- 
ments and  authorities  produced  by  an  adversary  ;  dis- 
cerns the  weight  of  authorities,  and  is  apt  in  applying 
them,  and  in  driving  home  whatever  tells  in  his  favor. 
He  is  also  ready  with  his  pen,  which  he  has  been  ac- 
customed to  use.  His  voice  is  unusually  good.  It  is 
clear  and  pleasing,  and  he  can  make  himself  heard  in 
the  largest  halls,  having  distinct  enunciation.  His 
general  preparation  for  work  at  the  bar  enables  him 
to  go  into  a  wide  range  of  practice.  His  speech, 
when  he  is  thorou^hlv  aroused,  is  los-ic  on  fire.  His 
practice  has  been  mainly  in  civil  cases  ;  but  he  has  ac- 
quitted himself  well  when  engaged  before  the  criminal 
-courts. 


282  TRIAL    PRACTICE. 


CHAPTER  XXV 


THE   CINCINNATI  BAR. 


Judge  Geo.  A.  Hoadly,  present  candidate  for  gov- 
ernor, the  peer  of  Stanley  Matthews,  and  other 
bright  lights  of  southern  Ohio,  is  of  medium  size,  over 
fifty.  Yet  quite  young  in  appearance,  with  dark  eyes, 
smoothly  shaven  features,  save  a  black  mustache.  He 
is  the  idol  of  young  lawyers  in  his  native  city,  of  genial 
manners,  kindly  speech  ;  clear  knowledge  of  general 
practice,  especially  corporation  cases  ;  a  man  of  far  see- 
ing and  comprehensive  methods,  he  wins  by  thorough- 
ness and  cleverness.  Few  men  bring  to  a  trial  so  many 
resources,  wisdom,  sagacity,  plain  sense  and  sturdy 
integrity.  He  is  not  eloquent,  and  yet  a  great  speaker. 
In  the  famous  Bible  in  the  Schools  Case,  his  argument 
was  masterly  and  effective.  If  asked  how  he  succeeds 
in  practice,  but  one  answer  will  be  given  by  those  who 
know  him,  by  all  honest  arts,  save  eloquence.  Judge 
Hoadly  is  a  born  and  trained  advocate,  with  cultivated 
powers  and  combined  resources.  He  reads,  studies,, 
and  reflects  upon  the  works  of  great  men.  He  masters 
the  methods  of  many  men,  and  is  willing  to  learn,  even 
at  his  stage  of  life,  wherever  new  arts  in  practice  are 
to  be  acquired.     He  believes  that  with  no  one  man  lives 


CINCINNATI    LAWYERS.  283 

all  the  knowledge  of  practice,  and  so  thinking,  seeks 
to  widen  his  held  of  information  by  every  available 
source.  He  is  a  great  listener,  and  learns  much  from 
the  other  side  of  litigations. 

Edgar  A.  Johnson,  his  law  partner,  and  younger  in 
years,  with  something  of  Mr.  Hoadly's  appearance,  is 
stronger  in  build,  and,  unlike  the  former,  uses  brief 
notes  in  lieu  of  copious  ones.  He  is  a  pleasing  speaker, 
and  attracts  crowds  of  listeners.  A  man  of  broad  cul- 
ture, he  is  so  full  of  his  subject  while  speaking,  that 
he  has  hardly  room  for  use  of  notes,  and  follows  the 
extreme  Southern  style  of  oratory.  Vivid  and  de- 
scriptive, composed  from  the  subject  where  his  words 
and  sentences  seem  born  in  sight  of  his  hearers.  With 
that  earnestness  of  purpose  and  intrepid  courage,  he 
wins  by  effects  that  advocates  often  neglect — intense 
belief  in  a  cause,  coupled  with  intense  application. 
One  cannot  help  feeling  that  Edgar  A.  Johnson  is  try- 
ing each  case  as  if  it  were  his  last,  and  on  which  hang 
and  center  all  his  reputation  as  a  speaker  forever. 

Thomas  D.  Lincoln,  a  relation  of  the  lamented  and 
greatest  of  all  our  lawyer  presidents,  is  a  lawyer  of 
Cincinnati,  that  greatly  resembles  his  namesake,  of 
whom  he  is  justly  proud,  and  with  whom  he  has  tried 
many  cases.  He  is  nearly  sixty,  and  stout  built.  Like 
the  great  martyr,  Thomas  is  powerful  in  body,  rugged 
in  speech,  and  honest  in  convictions.  He  speaks  with 
notes,  grows  intensely  pathetic,  in  the  natural  interest 
he  takes  in  his  cases.  His  feelings  moves  other  hearts 
as  well  as  his  own,  and  often  leads  to  that  towering 
style  of  carrying  away  a  jury  by  flights  of  indignity, 
bursts  of  eloquence,  or  touches  of  pathos.     It  is  said 


284  TRIAL    PRACTICE. 

that  on  one  occasion  his  jury  half  rose  to  their  feet, 
and  cheered  by  the  manner  as  plainly  as  though  they 
had  orally  expressed  approval  of  his  sentiments,  and 
that  he  knew  where  to  stop,  at  just  that  winning  point 
of  his  argument.  Few  lawyers  know  this  golden 
secret — and  fewer  practice  it.  It  is  not  always  that  an 
advocate  does  his  very  best,  seldom  do  men  rise  to  the 
sublimity  of  eloquence,  the  greatest  of  all  aids  in  win- 
ning cases.  But  with  a  jury,  once  at  such  a  summit, 
to  leave  them,  by  all  means  is  wise. 

John  McS weeny,  of  YVooster,  Ohio,  is  an  advocate 
of  unusual  power  with  a  jury.  Age,  experience  and 
natural  talents  as  a  speaker,  with  a  sympathetic  nature, 
add  to  his  efforts  in  criminal  cases,  which  are  largely 
his  specialt}\  Large,  tall,  strong  lunged  and  well 
modulated  voice,  he  is  ardent  in  debate,  full  of  apt 
quotations,  dramatic  in  delivery,  and  spares  no  pains 
to  discover  the  gist  of  the  controversy,  and  press  it 
with  great  energy  to  the  court  and  jury.  He  wins  his 
cases.  He  overcomes  obstacles.  He  creates  defenses. 
He  argues  from  example,  and  illustrates  fluently,  tell- 
ing occasional  stories,  but  always  as  if  by  chance.  He 
employs  notes  very  sparingly,  and  generally  speaks 
from  memory.  He  has  a  habit  of  putting  his  intense 
and  overmastering  belief  before  the  jury  in  convincing 
words.  Once  retained  in  a  case,  he  forms  a  clear 
theory,  and  adheres  to  it ;  believing  it  to  be  the  duty  of 
counsel,  and  not  of  clients,  to  shape  their  defenses  in 
jury  trials. 

In  the  famous  Gov.  Scott  case,  tried  within 
the  year  1882,  at  Napoleon,  Ohio,  Mr.  McSweeny  was 
•extremely  happy  in  explaining  the  shooting  by  illustra- 


CINCINNATI    LAWYERS.  285 

tion.  The  governor  had  gone  hurriedly  to  a  drug- 
store to  bring  his  son  home  late  one  Christinas  night, 
where  he  was  in  bad  and  dangerous  company,  and  had 
refused  a  request  of  Mrs.  Scott  to  return  at  bed-time. 
Some  remark  had  reached  Gov.  Scott  of  his  son's 
danger,  and  that  some  rough  boys  might  kill  him,  and 
he  rose  hurriedly,  threw  on  a  fall  overcoat,  and  reached 
the  store  with  hands  in  his  pocket,  and  one  hand  invol- 
untarily on  his  revolver.  He  demanded  his  son,  and 
the  clerk  blocked  the  way  to  the  back  room,  and  re- 
fused to  let  him  pass.  A  second  demand,  and,  as  Mr. 
Scott  says,  he  lost  all  consciousness  till  he  saw  the 
clerk  at  his  feet,  fatally  shot  in  the  body,  and  bleed- 
ing. He  stooped  and  raised  the  wounded  youth,  who 
was  very  much  smaller  than  himself,  and  saw  that  he 
was  fast  dying.  He  surrendered  himself  at  once,  and 
was  soon  tried  for  murder.  Mr.  McSweeny  defended. 
A  companion  pistol  was  produced.  It  went  off  at  the 
slightest  touch.  In  the  trial ,  McSweeny  handed  the  coat 
and  pistol  to  an  expert  witness  to  attempt  to  withdraw 
it  hurriedly,  claiming  it  would  go  off  unaided.  Failing 
to  get  an  expert  to  experiment,  he  himself  took  the 
pistol,  and  three  times  in  succession,  drew  it  from  his 
pocket,  and  each  time  the  discharge  accompanied  the 
withdrawal.  On  this  theory  of  accidental  shooting 
(excellently  elucidated),  Gov.  Scott  was  saved  from 
the  gallows.  The  price  of  such  services  is  beyond 
estimate.  It  secured  McSweeny  a  place  in  the  Star 
Route  Cases,  where  his  success  was  not  so  marked. 


2§6  TRIAL    PRACTICE. 


CHAPTER  XXVI. 


THE  WASHINGTON  BAR. 


Walter  D.  Davidge,  of  Washington,  D.  C,  is  the 

leading  advocate  of  the  National  Capital.  A  man  of 
fifty  years,  with  silvery  hair,  looking  near  sixty.  Of 
medium  size  and  build,  graceful  in  carriage,  dignified 
in  manner  ;  subtle  and  wise  as  a  reasoner  and  debater, 
with  a  power  of  plausible  language  that  takes  and  con- 
vinces a  court  or  jury.  He  is  gifted  in  defenses,  and 
his  real  gift  is  insight.  He  labors  insiduously,  but  has 
an  intuitive  belief  in  nearly  all  his  victories.  Cool, 
collected,  not  eloquent,  but  legally  strong  and  com- 
manding, he  seizes  the  strong  points  of  his  cases,  and 
holds  them  to  the  court  and  jury  with  determined  ear- 
nestness.    He  has  an  admirable  practice. 

His  manner  is  directness  itself.  His  words  are 
strong  Saxon,  his  industry  and  personal  popularity  are 
worthy  acquirements,  and  secure  him  a  large  clientage. 
He  was  in  the  Garfield  assassin  case,  and  called  the 
President  murderer  many  new  names  that  made  the 
villian  dislike  him,  next  to  Judge  Porter,  the  worst  of 
all  men  living  in  Washington.  He  was  retained  with  a 
$10,000  fee  in  this  suit,  by  the  Attorney-General. 
But  he  had  already  made  a  fortune  in  his  profession. 


WASHINGTON    LAAVYERS.  287 

Enoch  Totten,  of  Washington,  D.  C,  is  about  fifty- 
five  years  of  age  ;  a  man  of  fine  presence  and  impres- 
sive manner,  a  busy  lawyer  and  hard  worker.  It  is 
said  he  has  the  largest  number  of  cases  on  the  Supreme 
Court  docket  of  any  other  counsel.  He  rarely  indulges 
in  eloquence,  but  always  makes  a  strong,  legal  argu- 
ment, forcibly  applied  to  the  facts  in  dispute.  There 
is  a  native  terseness  and  directness  in  his  words  and 
manner  that  compels  attention.  He  owes  his  success 
partly  to  ability,  but  more  to  hard  work.  He  was  a 
•colonel  during  the  war,  and  has  built  up  his  practice 
since  1865.  Few  men  of  his  years  have  seen  more  ac- 
tive practice,  and  few  excel  him  in  preparing  cases  for 
a  court  of  Judges.  He  is  one  of  that  class  of  advo- 
cates who  exhausts  both  sides  of  a  question,  and  never 
leaves  his  adversary  with  a  fresh,  unbeaten  path  to 
follow  on  either  side  of  a  controversy.  This  thorough- 
ness begets  confidence,  and  he  is  really  a  strong  man 
in  a  legal  contest  in  any  case  before  any  tribunal. 

Richard  T.  Merrick,  of  an  old  Maryland  family,  has 
won  a  bright  name  in  "Washington  courts,  and  become 
very  prominent  in  the  Star  Route  cases  ;  is  about  fifty 
years  of  age  ;  rather  below  the  medium  height  and 
size;  courteous  in  maimer  —  a  born  gentleman  in 
every  sense  of  the  word.  A  hard  student  and  a  bril- 
liant advocate  ;  fiery  and  impetuous  in  debate  ;  quick 
at  retort,  rhetorically  eloquent  in  the  highest  degree. 
He  uses  fine,  flowery  language,  and  is  hence  a  favorite 
with  juries. 

With  a  clear,  ringing  voice  he  commands  large  audi- 
ences, and  is  personally  very  .popular,  especially  with 
younger  members  of  the  bar,  to  whom  he  is  generous 


288  TRIAL    PRACTICE. 

and  obliging  on  ;ill  occasions.  Such  men  are  favorites, 
and  when  he  comes  into  court,  he  carries  an  air  of 
summer  sunshine  that  pleases  people.  He  was  counsel 
for  John  H.  Surratt,  also  for  Samuel  J.  Tilden  before 
the  electoral  commission,  where  he  made  the  most  pro- 
found and  eloquent  argument  that  was  made  on  his 
side  of  the  case,  as  well  as  the  most  elaborate.  Al- 
though liberal  and  generous,  he  was  well  to  do,  and 
has  a  large  and  lucrative  practice  in  and  about  Wash- 
ington and  Baltimore. 

Other  bright  lights  adorn  the  Washington  bar,  in- 
cluding Col.  Ingersoll,  whose  home  is  located  there;, 
but  of  the  Colonel,  so  much  is  said  that  no  new  thing 
is  likely  to  be  told  of  his  style  of  advocacy.  At  a  risk 
of  repeating  some  things,  I  will  say  that  he  is  very 
large,  a  blond,  very  bald,  clean  shaven,  portly  face,, 
laughing  eyes,  jovial  manner,  writty,  full  of  intense, 
original  sayings  wonderfully  magnetic  and  fascinating 
in  style,  manner  and  language,  a  high  liver,  an  earnest 
speaker  who  uses  frequent  illustrations,  and  grows 
sarcastic  and  pathetic  by  quick  successions,  turning  a 
point  for  a  smile,  or  drawing  tears  of  sympathy,  as  by 
the  wrave  of  his  generous  hand. 

He  is  not  so  profound  in  law  as  he  is  fluent  in  words, 
and  powerful  in  graphic  illustrations.  The  most  pop- 
ular of  all  lecturers,  he  of  course,  attracts  large  hear- 
ers when  he  appears  in  court  trials.  A  natural  advo- 
cate he  may  be  called  a  gifted  speaker  on  almost  all 
themes  and  occasions.  He  grew  to  prominence  in  Illi- 
nois, and  acquired  a  national  reputation  at  Cincinnati  in 
1876,  by  his  masterly  speech  that  placed  James  G.  Blaine 
before  the  convention  as  a  candidate  for  the  Presidency. 


SOUTHERN    LAWYERS.  289 


CHAPTER  XXVII. 


THE    SOUTHERN   BAR. 


John  G.  Carlisle,  of  Kentucky,  is  in  his  48th  year. 
He  is  a  trifle  above  medium  height,  weighs  140  pounds, 
and  stands  erect.  He  has  a  Avell  knit  body,  fairly  full 
chest  and  an  elastic  step.  His  hair  is  a  light  brown. 
The  crown  of  his  head  is  bald,  and  a  small  tuft  of  hair 
only  prevents  that  baldness  reaching  from  crown  to 
forehead.  The  latter  is  fairly  high  and  broad,  pro- 
jecting slightly  above  the  eyes.  With  an  extraordinary 
pale  face  for  a  background,  his  bright  blue  eyes  are 
o-iven  unusual  lustre  by  heavy  and  over-dark  eyebrows. 
His  nose  is  large,  and  would  be  generally  called  straight, 
but  has  a  slightly  raised  bridge,  and  his  nostrils  swell 
out  full.  His  mouth  is  generous  in  width,  and  is  out- 
lined by  compressed,  yet  not  thin  lips.  His  chin  is 
prominent  enough  to  show  stability  of  character  with- 
out indicating  obstinacy.  His  face  is  clean  shaven  and 
its  pallid  whiteness  is  marked  by.  strong  lines  and 
prominent  cheek  bones.  His  features  are  not  those  of 
a  handsome  man,  but  of  an  intelligent  being  who  has 
devoted  his  years  since  boyhood  to  constant,  serious 
thought. 

Like  the  majority  of  the  men  of  worth  in  this  new 
country,  he  comes  of  humble  birth.     His  father  was  a 

(19) 


290  TRIAL    PRACTICE. 

farmer  of  Kenton  county,  Kentucky,  but  a  few  miles 
from  Covington,  and  was  unable  to  give  his  son  any 
education  other  than  that  afforded  by  a  rural  school 
which  was  open  only  during  the  winters.  Daring  the 
remaining  months  of  the  year,  young  Carlisle  worked 
on  his  father's  farm. 

From  the  time  of  his  admission  to  the  bar  until  now, 
Mr.  Carlisle  has  managed  an  immense  law  practice. 
He  has  two  partners,  the  junior  member  being  his 
eldest  son.  Their  law  offices  are  in  Covington,  and  in 
them  is  one  of  the  finest  libraries  in  the  State.  The 
practice  of  the  firm  takes  Mr.  Carlisle  into  every  por- 
tion of  Kentucky,  and  there  is  not  a  session  of  the 
Kentucky  Court  of  Appeals  which  does  not  find  him 
there  as  counsel  on  one  side  or  the  other  of  the  most 
important  cases. 

In  no  sense  is  he  a  trickster.  He  has  no  taste  for 
"working  up"  a  case.  He  takes  the  evidence  as  it 
exists,  divests  it  entirely  of  irrelevant  points,  arranges 
it  in  the  most  methodical  and  effective  manner,  and  to 
it  applies  the  principles  of  common  and  statute  law. 
His  rapidity  in  examining  evidence  and  records,  and 
rejecting  the  unimportant  and  misleading,  is  phenom- 
enal. His  memory  of  names,  dates  and  figures,  is 
marvelous.  His  powers  of  condensation,  and  his  com- 
mand of  terse,  vigorous,  and  yet  smooth  flowing  sen- 
tences, make  his  speeches  as  interesting  and  effective  as 
a  Latin  epic  poem.  Never  in  a  speech,  judicial  or 
political,  was  he  known  to  indulge  in  anecdote,  jest, 
sarcasm  or  apt  quotation.  Seriousness,  directness  and 
simplicity  are  the  features  of  all  his  public  utterances. 
The  Louisville  attorney  often   quoted   illustrates  Car- 


SOUTHERN    LAWYERS.  291 

lisle's  abilities  as  a  lawyer  by  the  following  story : 
"  He  has  never  changed  his  style  or  manner.  He  has 
a  remarkably  sweet  voice,  and  there  is  something  about 
the  man  that  is  inexpressibly  winning.  He  spoke 
before  the  Court  of  Appeals  a  few  years  ago  on  a 
murder  case  when  I  was  there.  His  argument  lasted 
nearly  two  hours,  and  when  it  was  concluded,  presiding 
Judge  Cofer  asked  his  brother  judges  to  adjourn  for 
the  day.  A  lawyer  who  had  a  case  set  for  the  day, 
asked  why  the  court  was  to  be  adjourned.  Cofer 
crisply  replied  :  '  I  hate  to  have  a  good  thing  spoiled, 
as  would  be  the  case  if  any  other  man  followed  Car- 
lisle.' '  In  Washington,  when  his  arduous  duties 
permit  him,  he  is  studying  his  law  cases,  preparing 
hi-  briefs  and  forwarding  them  with  advice  about  the 
conduct  of  suits,  to  his  partners  in  Kentucky.  He  is 
regarded  as  the  strongest  constitutional  lawyer  of  any 
democrat  in  either  house.  When  Thurman  was  in 
Congress,  they  were  equally  consulted,  but  now  Car- 
lisle's opinions  are  democratic  statutes. 

Thomas  J.  Semmes,  a  prominent  advocate  of  New 
Oilcans,  is  a  man  of  medium  size,  age  about  fifty-five 
years,  whose  manner  is  pleasing,  with  a  voice  clear  and 
flexible,  plausible  and  ingenius  in  argument,  at  times 
extremely  vigorous.  Selecting  a  few  salient  points  of 
his  cases,  he  relies  on  them,  and  never  lumbers  his 
arguments  with  little  matters.  He  wins  his  cases  on 
the  central  merits  without  much  regard  to  finer  details. 
His  courtly  bearing  and  general  good  practice  has 
made  him  prominent  throughout  the  State.  He  has 
been  attorney  general,  and  is  one  of  the  most  popular 
and  successful  advocates  of  Louisiana.     His  hiirh  char- 


292  TRIAL    PRACTICE. 

acter,  learning  and  integrity,  with  many  graces  of 
oratory,  has  made  him  powerful  with  courts  and  juries. 

Judge  William  Wirt  Howe,  a  tall,  slender,  but 
graceful,  attorney,  of  cultivated  manners  and  large 
business  practice  in  New  Orleans,  is  nearly  forty-eight, 
an  erudite  scholar,  a  jurist  and  writer  of  State  reputa- 
tion ;  though  a  pleasing  speaker,  he  relies  more  on  the 
law  of  his  cases,  and  a  certain  tact  of  winning  easy 
victories. 

On  the  bench,  his  reported  opinions  rank  as  of  the 
best  in  his  State.  He  has  served  as  associate  justice 
of  the  Supreme  Court,  but  from  choice  returned  to  a 
lucrative  practice. 

In  voice,  style  and  manner,  he  is  of  the  real  Southern 
type  of  advocates.  Courteous  and  considerate  to 
others,  firm  and  determined  in  duty,  his  decorum  and 
urbane  bearing  make  many  friends  and  an  increasing 
line  of  large  cases. 

Gustave  A.  Breaux,  a  native  of  Louisiana,  of  French 
extraction,  aged  fifty-four,  is  a  tall  man  of  powerful 
frame,  full  of  the  characteristic  animation  and  activity 
of  his  native  race.  Studious,  and  attentive  to  business,, 
careful  and  painstaking  with  his  cases,  he  has  built 
up  a  large  and  lucrative  practice  in  New  Orleans. 
Eschewing  all  attempt  at  merely  ornate  speaking,  his 
arguments  are  marked  by  excellent  points  and  forcible 
logic,  which  are  his  means  of  winning  court  or  jury 
cases. 

He  has  served  as  State  Senator  and  member  of  the 
State  Constitutional  Convention,  with  credit  and  dis- 
tinction. His  share  of  city  practice  is  not  wholly  con- 
fined to  French  settlers,  of  whom  his  city  is  a  favorite 


SOUTHERN    LAWYERS.  2^3 

home  in  the  South-west,  but  a  general  business  with  a 
good  clientage. 

'  Besides  the  brilliant  array  of  southern  Ohio  lawyers, 
and  their    equally  distinguished  Kentucky  rivals  who 
practice  in  the  southern  States  in  important  cases,  there 
are  a  vast  number  more  over  the  entire  south,   known 
to  fame  in  their  native  States,  kept  from  national  note 
by  lack  of  a  metropolitan  press  to  tell  of  their  victories  ; 
it  is  only  occasionally  that  one  like  Judge  Campbell  of 
New  Orleans,   Senator  Harris,  of    Georgia,    General 
Rodman  or  Colonel  Breckinridge,  of  Lexington,  William 
Garrard,  of  Savannah,  or  Isaac  Colwell,  of  Louisville, 
become  noted  in  national  cases.     The  growth  of  fame 
at  the  bar— with  but  few  exceptions  — in  America,  has 
been  confined  to  men  of  eastern  and  southern  cities. 
The    peculiar    love    of   eloquence  that  inspired  Clay, 
Calhoun,  Crittenden,  Marshall  and  Prentiss,  has  left  a 
host  of  bright  lights  unnoticed  in  remoter  regions  where 
the  press  penetrates,  but  seldom  sends  out  accounts  of 
trials  and  speeches.     Most  of  the  southern  advocates, 
since  the  rebellion,  who  had  formerly  practiced  south 
of  Kentucky,  have  won  renown  by  removal  to  large 
cities,  or  election  to  national  positions. 

It  is  said  that  Ben  Hill,  Jr.,  is  a  promising  successor 
to  his  distinguished  father,  and  one  of  the  rising  advo- 
cates of  Atlanta,  Georgia,  whose  competitors  are 
Chandler,  Thompson,  Millage  and  Lester,  with  the 
usual  complement  of  able  attorneys  in  different  sec- 
tions of  that  long,  large  State.  That  L.  P.  Walker, 
of  Huntsville,  Alabama,  David  Clapton,  of  Montazuma, 
in  the  same  State,  Ed.  Baxter,  of  Nashville,  and  Judge 
McGrath,  of  Charleston,  South  Carolina,  are  all  able 


294  TRIAL    PRACTICE. 

and  thoroughly  successful  advocates,  who  would  make 
their  mark  in  any  of  the  cities  like  New  York,  Boston, 
Cincinnati  or  Chicago,  where  associate  press  dispatches 
tell  the  world  daily  every  event  of  interest.  In  this 
respect  the  Southern  bar  labors  under  great  disad- 
vantages, something,  perhaps,  in  the  line  of  compen- 
sation for  their  excellent  climate  and  congenial  fields 
for  oratory.  A  section  where  more  attention  is  given 
to  good  speeches  than  any  other  country  of  our  conti- 
nent. 

Judge  David  Carter,  Chief  Justice  of  the  Supreme 
Court  of  the  District  of  Columbia,  is  about  sixty-seven, 
over  six  feet  high,  over  250  pounds  in  weight,  brown 
hair,  imperial  beard,  high  forehead,  prominent  features, 
original  in  thought  and  full  of  quaint  sayings.  A  man 
of  positive  convictions,  and  as  a  judge,  frequently  in 
the  absence  of  what  he  conceives  to  be  law,  will  apply 
principles  of  common  sense.  He  has  a  slight  impedi- 
ment in  his  speech,  and  possesses  native  reason  in  a 
large  degree.  On  this  and  his  commanding  presence, 
he  has  made  his  reputation.  In  his  native  State,  Ohio, 
he  was  a  powerful  lawyer,  and  succeeded  in  business 
law.  and  became  wealthy.  He  is  an  off-hand  speaker, 
and  full  of  directness. 

Judge  John  A.  Campbell,  a  distinguished  jurist  and 
advocate  of  New  Orleans,  before  the  war  was  one  of 
the  brilliant  southern  lights  in  oratory.  A  man  of 
medium  size,  with  courtly  bearing,  chivalrous  and  high- 
minded  in  practice,  full  of  warm  sympathies  and  ex- 
cellent legal  knowledge.  He  had  a  large  practice,  and 
built  up  a  splendid  reputation  as  an  advocate  before 
his  election  as  supreme  court  judge. 


SOUTHERN    LAWYERS.  295 

Charles  S.  Blackburn,  the  great  criminal  lawyer  of 
Kentucky  and  southern  Ohio,  is  over  forty-five,  tall, 
large,  majestic  and  impressive  in  appearance,  powerful 
in  argument  and  highly  rhetorical  in  language.  He 
has  long  been  a  leader  on  the  defense  of  murder  cases. 
He  reasons  Huently,  without  notes  ;  is  ingenius  and 
adroit  with  management  of  facts,  and  relies,  with  these, 
on  powerful  oratory  and  a  wise  selection  of  his  juries. 
He  succeeds  by  actual  determination,  and  if  there  is  a 
man  in  Ohio  who  can  talk  up  a  case  before  a  jury 
better  than  Blackburn,  he  is  not  known  in  Cincinnati. 

John  G.  Harris,  the  leading  advocate  of  Memphis, 
Tennessee,  is  over  seventy  years  old,  rather  above 
medium  size,  dark  eyes  and  complexion,  and  hair  fast 
turning  gray.  He  is  at  present  senator,  recently  re- 
elected, as  he  said,  for  the  last  term. 

Senator  Harris  is  a  fine  speaker,  and  a  great  favorite 
in  his  native  State,  where  he  has  been  for  years  governor 
and  where  his  legal  and  political  career  has  been  bril- 
liantly successful. 

An  orator,  and  born  with  the  greatest  of  all  the  gifts 
of  advocacy,  he  is  eloquent.  Possessing  friends, 
clients  and  ability,  his  practice  has  been  limited  mainly 
to  his  personal  ability  to  attend  to  his  cases. 


296  TRIAL    PRACTICE. 


CHAPTER  XXVIII. 


PHILADELPHIA  LAWYERS. 


Jere  Black,  the  Philadelphia  lawyer,  stern,  rigid, 
trained  and  bred  a  genius  at  the  bar  for  almost  a  half 
century.  A  case  that  Mr.  Black  would  lose  must  be 
bad  indeed.  He  tries  his  suits  on  logical  principles, 
avoiding  all  emotion,  but  saving  the  slightest  sentence 
in  favor  of  his  client.  His  practice  has  long  been  in 
the  supreme  court,  and  he  is  scarcely  now  an  active 
advocate.  Yet  his  reasons  are  wonderfully  acute  and 
telling.  He  has  won  his  suits  by  intense  application 
and  long  experience  ;  besides  being  a  born  lawyer. 

He  was  engaged  in  the  Johnson  Impeachment  Trial, 
and  counsel  in  nearly  every  important  national  contest 
at  Washington  for  a  half  century.  In  the  trial  of 
cases  Mr.  Black  has  relied  upon  himself.  His  research 
in  English  and  American  decisions  is  remarkable,  but 
the  sterling  qualities  of  his  genius  is  a  keenness  of  in- 
sight. Like  the  late  Judge  Halmer  Emmons,  of  the 
United  States  Court,  he  could  determine  in  advance 
the  result  of  a  long  litigation.  This  is  the  proverbial 
gift  of  the  renowned  Philadelphia  lawyers.  They 
know  the  mysteries  of  complicated- cases,  and  with 
none  is  this  faculty  more  developed  than  with  Jeremiah 
S.  Black  and  Daniel  Dougherty. 


PHILADELPHIA    LAWYERS.  297 

Daniel  Dougherty,  of  Philadelphia,  and  leader  of 
Pennsylvania  bar,  is  gifted  in  words,  thoughts  and  ac- 
tions before  audiences.  Of  medium  size,  dark  com- 
plexion, age  about  tifty,  in  the  full  prime  of  vigorous 
faculties  and  lucrative  practice. 

He  is  noted  as  a  ready,  fluent  and  erudite  reasoner,  who 
combines  the  graphic  with  the  beautiful  in  a  literary  point 
of  view.  He  is  of  the  Irish  Pennsylvanian  stock,  noted 
for  warm  enthusiasm  and  rhetorical  reasoning  powers. 

He  is  a  great  reader ;  a  lover  of  books  and  fine 
thoughts.  His  manner  is  self-oblivion  and  exceedingly 
impressive.  He  enters  on  his  subjects  with  careful 
caution  and  chaste  sentences  ;  reaches  his  argument  by 
the  most  direct  road,  and  holds  absolute  control  of  his 
hearers  —  seldom  failing  to  convince  their  judgment, 
while  he  charms  their  senses.  His  voice  is  silvery  and 
ringing.  The  arrangement  of  his  points  and  para- 
graphs is  the  admiration  of  cultured  Pennsylvanians. 
In  his  final  appeal  to  a  jury  he  is  pathetic,  and  often 
reaches  the  sublime.  His  eloquent  presentation  of 
General  Hancock  to  the  Cincinnati  Convention  in  1880, 
has  been  seldom  equalled  in  all  the  long  line  of  bril- 
liant nominating  speeches  of  presidents.  His  practice 
is  large,  and  largely  confined  to  estates  and  matters  of 
great  importance.  He  is  modest  and  unassuming. 
He  cares  little  for  titles,  and  prefers  rather  to  be  an 
able  advocate  and  counselor,  than  hold  any  office  how- 
ever lucrative.  His  conduct  at  the  bar  is  marked  by 
that  deference  and  innate  politeness  to  others  that 
commands  a  good  share  of  respect  to  himself,  and 
causes  the  younger  members  of  the  bar  to  all  long  to 
be  a  lawyer  like  Dougherty. 


298  TRIAL    PRACTICE. 


THE  ALBANY  BAR. 


Hamilton  Harris  is  a  leading,  and  one  of  the  most 
successful  advocates  at  the  Albany  County  Bar.  His 
age  is  fifty-eight  years.  He  is  tall,  well  built,  dark 
complexion,  black  hair,  which  he  keeps  cut  quite  short- 
He  wears  no  beard.  He  excels  in  managing  cases  and 
cross-examining  witnesses.  Before  juries  his  earnest- 
ness and  apparent  sincerity  impresses  his  hearers,  He 
has  been  District  Attorney  of  his  county,  and  for  sev- 
eral times  State  Senator.  In  both  stations  he  was  es- 
pecially noted  and  successful. 

In  important  legislature  investigations  he  is  fre- 
quently employed.  The  most  recent,  the  investiga- 
tion of  charges  against  Justice  T.  It.  Westbrook  in  the 
winter  of  1882,  in  which  he  defended  the  Justice,  and 
succeeded  in  securing  a  favorable  report  for  his  client. 
He  is  resident  attorney  for  Jay  Gould  and  several  rail- 
road companies,  and  his  management  of  cases  has 
been  unusually  successful.  Mr.  Harris  was  a  member 
of  the  first  new  capitol  commission,  and  is  engaged  as 
the  one  of  the  most  active  in  pushing  forward  the  en- 
terprise. 

Rufus  W.  Peckham,  is  the  second  son  of  Judge  R. 
W.  Peckham,  late  of  the  New  York  Court  of  Appeals. 
Since  the  death  of  his  father,  which  occurred  at  sea  by 
the  sinking  of  the  "Villa  de  Havre,"  he  has  taken 
high  rank  in  his  profession  of  law. 

His  brother,  Wheeler,  was  one  of  the  counsel  who 
accomplished  the  defeat  and  downfall  of  the  Tweed 
ring,  in  New  York  City.  The  subject  of  this  sketch 
is  a  tall,  slender,  light  haired  man,  forty-four  years  of 


PORTLAND    LAWYERS.  290 

age.  He  is  a  well  read  lawyer  and  fluent  speaker,  but 
has  cold  and  peculiar  manners.  His  best  efforts  are 
before  the  higher  courts.  He  has  been  engaged  in  very 
important  cases  of  litigation,  and  is  now  the  corpora- 
tion counsel  of  Albany.  His  extensive  practice  takes 
him  before  the  Court  of  Appeals  frequently.  Before 
the  death  of  Lyman  Tremain,  he  was  his  associate 
in  business.     He  was  District  Attorney  of  this  county. 

Judge  Amasa  J.  Parker  is  the  oldest  practicing  law- 
yer in  the  city.  Judge  Countryman,  his  partner,  is  a 
brilliant  advocate,  and  in  a  few  years  has  gained  posi- 
tion and  renown. 

Judge  Ira  Harris,  of  Albany,  late  U.  S.  Senator  of 
New  York,  was  exceedingly  courteous  and  finished  in 
address  and  manners.  A  tall,  scholarly  and  disting- 
uished looking  advocate,  whose  mastery  of  excellent 
English  and  legal  principles  and  purity  of  social  lifer 
made  him  exceedingly  popular  as  a  friend  and  counsel, 
and  much  sought  for  in  his  profession.  He  was  nota- 
bly the  most  refined  and  polished  advocate  in  New 
York.  He  lived  to  be  near  fifty,  and  died  lamented 
by  the  Albany  and  Central  New  York  bar,  as  one  of 
their  model  practitioners. 

Matthew  Hale  is  a  fine  jury  lawyer,  and  Samuel 
Hand  is  engaged  nearly  all  his  time  before  the  Court 
of  Appeals  in  the  argument  of  causes. 

THE  PORTLAND  BAR. 

Bion  Bradbury,  of  Portland,  has  for  many  years 
past  been  in  the  front  ranks  of  lawyers  in  Maine.  He 
has   enjoyed  a  large  and  lucrative    practice.      As    an. 


300  TRIAL    PRACTICE. 

advocate,  he  is  persuasive  and  convincing,  and  often 
eloquent,  while  his  known  character  for  integrity  adds 
weight  to  his  arguments.  He  is  always  courteous  to 
witnesses,  parties  and  the  court,  but  he  never  over- 
looks the  strong  points  in  his  cause,  nor  forgets  the 
weak  ones  of  his  adversary.  His  manner  is  attractive, 
his  voice  pleasing  and  his  arguments  logical,  but  not 
heavy.  He  is  a  master  of  the  art  of  enlivening  a 
dry  subject  by  flashes  of*  wit,  and  always  succeeds  in 
holding  interested  attention  of  his  auditors. 

Mr.  Bradbury  is  now  about  seventy  years  of  age, 
erect  in  form,  of  medium  height,  graceful  in  manner, 
and  in  all  respects  a  gentleman  of  the  old  school,  a 
class  which  we  fear  is  too  rapidly  disappearing. 

He  is  widely  known  both  at  home  and  abroad  as  a 
wise  and  safe  counselor,  an  able  and  eloquent  advocate, 
and  is  actively  engaged  in  the  management  of  cases, 
both  in  the  State  and  United  States  court.  He  carries 
his  years  lightly.  He  has  been  the  honored  president 
of  the  Cumberland  bar,  and  he  has  always  been  a 
leader  among  men. 

Sewall  C.  Strout,  of  Portland,  is  one  of  the  fore- 
most lawyers  of  Maine.  He  is  in  the  front  ranks  of 
the  profession,  a  leader.  Respected  by  bench,  bar  and 
people.  He  enjoys  a  large  and  lucrative  practice,  the 
reward  of  the  closest  attention  to  business.  He  is  a 
lawyer  in  the  largest  and  best  sense  of  the  term,  giving 
his  whole  time  and  energies  to  his  chosen  and  loved 
profession. 

As  a  counselor,  he  has  no  superior  in  Maine  ;  he  is 
wise  and  safe  ;  as  an  examiner  he  is  cool,  keen,  incisive 
and  powerful ;  and  while  always  courteous,  the  reluctant 


PORTLAND    LAWYERS.  302 

and  untruthful  "witness,  in  the  end,  always  yields  the 
truth  to  him. 

As  an  advocate,  he  is  persuasive  and  convincing,  and 
at  times  eloquent.  He  is  a  deep  thinker,  and  while 
strong  in  debate,  he  never  spends  time  on  trivial  mat- 
ters. His  high  standing  with  the  courts,  and  his 
character  for  integrity  and  fairness,  adds  weight  to  his 
arguments.  He  never  overlooks  the  strong  points  in 
his  cause,  nor  the  weak  ones  of  his  adversary. 

He  is  industrious  and  painstaking  in  the  preparation 
of  his  cases,  and  wise  and  sagacious  in  the  management 
of  them,  and  when  he  has  decided  to  undertake  a  case,. 
his  client  is  assured  that  all  will  be  done  for  him  that 
a  safe,  well  equipped  and  conscientious  lawyer  can  do. 

His  manner  is  attractive,  his  voice  pleasing,  and  his 
mind  logical,  but  never  tedious.  He  understands 
the  art  of  so  dressing  up  a  dry  subject  that  it  shall 
appear  interesting  and  attractive,  and  always  succeeds 
in  fastening  and  holding  the  attention  of  his  audience. 

Mr.  Strout  i-^  now  about  fifty-four  years  of  age, 
erect,  of  medium  height,  graceful,  and  impresses  one 
at  sight  with  his  atfibilitv,  kindness  of  heart  and  power. 

He  is  a  man  of  large  and  varied  experience,  of  fine 
presence  and  deservedly  popular  :  he  is  known  through- 
out the  State  as  an  able  and  high  minded  lawyer. 


TRIAL   PRACTICE. 


CHAPTER  XXIX. 


THE   MICHIGAN    BAR. 


This  being  a  State  of  common  law  practice,  with  an 
unusually  able  supreme  court,  and  the  home  of  many 
distinguished  advocates,  it  is  a  delicate  task  to  mention 
some  and  omit  others.  But  there  are  certain  admitted 
leaders,  whose  traits  of  character  and  manner  of  prac- 
tice would  be  instructive,  and  pleasant  to  remember. 
Of  those  that  are  most  frequently  mentioned  in  Detroit 
to-day,  will  be  heard  the  names  of  G.  V.  N.  Lothrop, 
the  polished  and  urbane  speaker,  whose  eloquence 
alone  has  made  him  victor  in  many  a  hard  fought  con- 
test. He  wins  by  a  style  like  Cicero  possessed  —  the 
art  of  pleasing  many  men.     He  is  now  nearly  seventy. 

Judge  Shipman,  his  once  sharp  competitor,  has 
ceased  trying  cases  since  his  judical  election,  except  on 
rare  occasions.  He  is  more  robust,  but  not  less  elo- 
quent, than  Mr.  Lothrop.  A  man  of  genius  and  great 
knowledge  of  human  nature. 

Col.  Sylvester  Larned,  of  the  same  age,  the  silver 
toned  orator,  has  won  many  cases,  and  will  win  many 
more  ;  his  power  with  a  jury  being  not  easily  overesti- 
mated. He  is  of  French  descent,  and  has  a  large 
criminal  court  practice. 


MICHIGAN    LAWYERS.  303 

Judge  Isaac  Marston  lately  resigned  a  seat  on  the 
supreme  bench  to  open  law  practice,  and  is  rapidly 
gaining  his  desired  object.  He  is  much  under  fifty,  a 
slim,  spare,  pale  faced  man,  of  pleasant  speech,  genial 
manners  and  wonderful  reasoning  powers  before  a 
jury.  Coming  to  a  full  bar  with  ripe  knowledge,  he 
has  secured  an  early  opening,  and  has  joined  Col. 
Atkinson  in  a  joint  practice. 

Col.  John  Atkinson,  now  one  of  the  most  prominent 
advocates  of  the  State,  is  a  rare  genius  ;  a  young, 
rather  large,  well  read,  shrewd  trial  lawyer,  who  has  an 
air  of  independence  and  sarcasm  that  is  very  forcible  ; 
for  he  cares  no  more  for  courts  than  opposing  lawyers, 
and  gains  his  points  less  by  eloquence  than  sheer  force 
of  will  and  farseeing  ingenuity.  He  pays  great  atten- 
tion to  libel  and  slander  cases,  and  wins  many  of  them. 
Being  counsel  for  the  Evening  News,  he  has  a  means 
always  ready  to  record  his  many  victories. 

Don.  M.  Dickinson,  by  far  the  most  distinguished 
young  lawyer  in  the  State,  is  quite  the  reverse  in  his 
methods  of  those  just  mentioned,  and  yet  wins  large 
cases  by  a  kindly  affable  manner,  that  makes  him  the 
warmest  of  friendships  with  court,  jury  and  client. 
As  a  sagacious  business  lawyer,  he  has  no  superior  in 
Michigan.  He  has  been  chairman  of  the  State  Central 
Committee,  and  is  a  leader  of  the  young  democracy 
in  Detroit.  Mr.  Dickinson  is  a  worker,  and  wins  by 
both  work  and  influence. 

His  partner,  Mr.  Levi  Griffin,  has  a  large  trial  prac- 
tice, and  makes  it  a  point  to  get  as  many  circuit  court 
verdicts  as  possible,  and  is  not  often  disappointed. 
His  method  is  peculiar  :  if  a  hard  case  is  defended  or 


304  TRIAL   PRACTICE. 

prosecuted,  he  wears  out  the  other  side  by  about  twice 
as  much  evidence  and  examination  as  they  look  for. 

Henry  M.  Cheever,  secretary  of  the  Detroit  bar, 
has  the  reputation  of  being  the  best  examiner  in  the 
State.  He  has  won  many  murder  cases,  and  always 
by  special  skill  and  manipulating  evidence.  His 
speeches  are  fully  prepared,  and  almost  committed  by 
the  work  upon  them,  quoting  largely  from  legal 
authority.  He  is  never  taken  by  8 uprise,  and  is  ex- 
ceedingly skillful. 

Ashley  Pond,  Vanderbilt's  lawyer,  is  at  the  head  of 
the  Michigan  bar  as  a  case  lawyer.  He  has  more 
points  at  his  fingers  end  than  any  of  his  competitors. 
Long  a  Professor  of  Ann  Arbor  he  has  committed 
many  principles  to  memory,  and  knows  how  to  apply 
legal  principles.  Not  so  much  an  advocate,  he  is  ex- 
tremely able  in  trial  practice.  Hon.  Otto  Kirchner, 
late  attorney-general,  is  mentioned  elsewhere. 

Alfred  Russell,  one  of  the  foremost  lawyers  in  the 
State,  and  one  who  goes  often  to  Washington  in  su- 
preme court  work,  is  a  gifted  speaker  and  finished 
scholar.  A  man  who  wins  by  a  long  look  ahead  and 
an  untiring  energy,  coupled  with  accurate  ideas  of 
practice,  acquired  while  United  States  District  Attor- 
ney during  the  years  of  1866  to  1872,  where  he  dis- 
played coolness  and  ability  to  cope  with  the  strongest 
advocates  like  Howard,  Emmons  and  Van  Dyke. 

In  the  cities  of  the  State  are  many  gifted  speakers 
less  known  and  yet  not  less  able.  Men  like  Darwin 
Hughes,  of  Grand  Rapids,  of  wonderful  endurance 
and  industry,  who  works  out  his  cases  as  from  Granite 
Marble,    and    brings    them  .to    court    in    symmetrical 


INDIANAPOLIS    LAWYERS.  305 

order.  Or  Benton  Hanchett,  whose  practice  is  so 
large  that  a  supreme  court  judgship  was  recently  re- 
fused as  no  temptation.  He  has  the  quality  of  win- 
ning cases  by  candor  and  eloquence,  and  is  exceedingly 
happy  with  jury  efforts.  Still  in  the  prime  of  early 
practice,  with  a  bright  future  and  a  growing  business. 
To  these  may  be  added  Judge  Shipman,  of  Coldwater, 
Chas.  S.  May,  of  Kalamazoo,  E.  L.  Koon,  of  Hillsdale, 
M.  J.  Smiley,  of  Grand  Rapids,  A.  J.  Sawyer,  of  Ann 
Arbor,  J.  B.  Moore,  of  Lapeer,  Gov.  Blair  and  James 
Gould,  of  Jackson,  and  O'Brien  J.  Atkinson,  of  Port 
Huron,  H.  II.  Reilly,  of  Constantine,  B.  M.Cutcheon, 
of  Manistee,  and  his  brother,  S.  M.  Cutcheon,  of 
Detroit,  all  of  whom  are  able  advocates. 

THE  INDIANAPOLIS    BAR. 

Thomas  A.  Ilendrieks,  eminent  as  an  advocate,  ora- 
tor and  statesman,  is  peculiarly  happy  before  a  jury, 
or  a  court  of  judges.  He  is  very  dignified  and  dis- 
creet in  bearing.  He  speaks  from  notes,  rather  in- 
clined to  show  facts  to  a  jury  than  spend  useless  words 
in  explanation.  He  goes  right  up  to  the  panel,  walks 
in  between  the  jurors,  carries  a  map  or  draft,  and 
calls  men  by  name  familiarly,  becomes  at  first  one  of  a 
jury,  and  then  returns  to  his  place  and  reasons  for  an 
hour  or  more.  But  the  jury  remember  best  his  ex- 
plaining power.  He  is  lucid,  gifted,  magnetic,  great 
with  juries.  I  remember  hearing  him  two  hours  at  a 
political  meeting.  He  was  strong,  entertaining,  and  I 
was  willing  to  say  good.  But  the  best  had  not  come. 
He  laid  his  notes  aside,   and  stood  silent  amid  great 

(20) 


306  TRIAL    PRACTICE. 

applause.     He  stepped  to  the  right,  as  an  actor  at  a 
recall.     The  crowd  cheered  again.     Instead  of  a  for- 
mal how,  the  features  lighted  up  with  a  look  of  grati- 
fication that  I  shall  never  forget,  as  he  rolled  off  a  five 
minutes  period,    so  charged   with  power,  pathos   and 
real  eloquence,  that  he  seemed  taller,  nobler,  half  in- 
spired.    I  shall  not  forget  the  thoughts  ;  they  were  full 
of  charity,  pure  principles,  and  expressive  diction.     It 
marked  Thomas  A.  Hendricks  as  a  natural  orator.    He 
represents  Cicero's  style  of  advocacy — the  clear  and  per- 
suasive that  steals  in  on  the  senses  by  surprise,  that  cap- 
tures a  jury  by  soft,  sweet  sentences,  and  kind  thoughts. 
"This  is  the  case,  gentlemen,"  he  says,  and  pro- 
ceeds to  point  out   on  a  plain   map  or  hoard  just   what 
his  theory  is,  going  right  along  in  the  rows  of  jury- 
men, till  he  is  almost  one  of  them,  for  many  minutes. 
Then  he   turns,  reasons,  argues,  informs    them  —  al- 
ways talking  persuasively  to  the  end,  when  he  warms 
into  a  strong  appeal.     His  great  object  seems  to  be, 
not  so  much  to  speak  about  a  case,  as  to  show  the  jury 
what  the  case  is.      Clearness,  absolute  clearness,  is  his 
forte.     But  it  must  not  be  presumed  that  he  is  dull. 
Not   at   all.     He  talks  as   Wendell    Phillips  lectures, 
with    pithy    sentences.     Governor   Hendricks  is  over 
sixty,  above  the  medium  size,  cleanly  shaven,  fine  face 
and  commanding  manner.     He  is  extremely  cautions, 
and    almost    too    much    so,  for  a  brave  leader,    but 
strong  in  his  convictions   of  right  and  justice.     For 
years  he  was  a  rival  statesman  with  Gov.  Morton,  and 
once  came  near  being  a  president.     A  man  of  excel- 
lent habits  and  pure  public  character  that  impresses 
all  juries  favorably.     He  is  still  in  active  practice. 


INDIANAPOLIS    LAWYERS.  307 

Across  the  street  from  Mr.  Hendricks  is  the  office 
of  Hon.  Jos.  E.  McDonald,  a  sturdy  and  successful 
lawyer,  and  an  attractive  speaker.  In  Indiana,  where 
he  i-  best  known.  Mr.  McDonald  is  called  the  common 
seuse  counsel.  In  cases  of  a  doubtful  nature,  he  is 
consulted,  and,  laying  aside  all  books,  he  consults  a 
half  hour  alone  with  his  client,  and  seeks  to  tind  out 
fully  what  ought  to  be  the  rights  of  the  controversy. 
If  the  client  is  wrong  in  his  position,  McDonald  takes 
a  counsel  fee  and  withdraws  at  once  ;  if  right  is  on  his 
side,  he  stands  by  it  through  every  court,  no  matter 
how  long  the  contest.  This  fact  is  so  well  known  that 
it  gives  character  to  his  speeches.  He  is  thoroughly 
honest  in  convictions.  He  practices  law  from  a  pure 
love  of  justice.  He  is  both  a  born  advocate  and  a  nat- 
ural judge  —  bolder  than  most  men,  he  never  takes 
back  what  he  has  uttered.  He  is  huge,  plain,  speaks 
deliberated}-  from  copious  notes,  is  emphatic,  logical, 
not  eloquent.  He  wins  by  that  kind  of  candor  that  a 
real  good  large  mature  man  of  high  character  can 
command  of  any  jury.  A  man  of  brains  and  common 
sense. 

Senator  Ben  Harrison,  of  Indiana,  is  a  speaker  of 
unusual  clearness.  About  five  feet  ten,  well  built, 
erect,  and  attentive  to  details  —  all  fine  points  in  prac- 
tice. About  fifty,  with  brown  hair,  and  lighter 
full  brown  beard,  worn  well  trimmed,  and  rather  long; 
a  pleasant  voice,  an  earnest  manner,  and  considerable 
magnetism.  He  is  of  the  old  stock  of  Harrisons,  and 
stands  deservedly  high  as  an  advocate  in  civil  and 
criminal  cases.  He  made  a  fine  address  in  the  famous 
Clem  case,  tried  some  years  ago,  for  murder  :  but  very 


o08  TRIAL    PRACTICE. 

little  of  his  speech  remains  printed.     He  begins  bis 

trials  by  reading  the  declaration  or  complaint .  States 
carefully  the  meaning  of  the  charge,  names  the  Balient 
evidence  on  each  side,  and  proceeds  with  the  evidence 
which  is  most  reasonable.  Then  beginning  on  the  un- 
disputed parts,  he  grows  into  the  case,  and  relates  the 
story  like  a  romance.  It  is  such  a  taking,  unusual 
wav,  and  so  carefully  told,  that  the  telling  alone  is  elo- 
quent. Old  family  connections,  long  life  of  rectitude, 
and  general  good  judgment,  have  done  something,  hut 
clearness  does  most  for  both  Choate  and  Harrison. 

Gen.  Thomas  M.  Browne,  of  Indianapolis,  is  an 
adroit  and  ahle  advocate  before  any  court  or  jury. 
Tall,  of  fine  physique,  large  forehead,  warm  counte- 
nance, dark  eyes  and  hair,  age  forty-eight,  impulsive 
and  rapid  of  speech,  ingenious  and  able  in  arrangement 
of  evidence,  he  is  one  of  the  first  lawyers  in  his  State 
in  criminal  and  civil  cases.  Long  a  partner  of  Major 
Gordon,  the  two  make  an  excellent  team  in  contested 
suits.  Largely  engaged  in  United  States  Court  prac- 
tice, the  General  has  time  enough  to  run  for  governor 
or  take  a  term  in  Congress.  At  such  times  he  is  a 
popular  and  impressive  stump  speaker.  His  ready  and 
open  manner  takes  with  a  public  audience,  and  he  is 
very  happy  as  a  campaigner.  His  forte  is  in  trying 
jury  cases  for  the  people.  Having  been  United  States 
District  Attorney  he  is  quite  familiar  in  practice,  and 
wins  a  large  share  of  cases  where  such  lights  as  Harri- 
son, Porter,  Hines,  McDonald  and  Butler  are  met  in 
daily  practice. 

Major  J.  W.  Gordon,  of  Indianapolis,  the  advocate  of 
most  note   in  criminal  cases  'in  Indiana,  is  nearly  sev- 


INDIANAPOLIS    LAWYERS.  309 

•ntv,  well  formed  and  well  preserved.  A  medium 
sized  man  with  iron-gray  hair  and  Napoleon  beard, 
slightly  Roman  nose,  sharp,  keen  eves,  high  forehead, 
and  ready  in  practice  or  argument.  He  is  full  of 
points  and  objects  often,  generally  succeeding  to  get 
three  or  four  new  trials  and  as  many  disagreements. 
Thisis  his  special  forte  in  practice,  and  he  often  wins 
by  it.  Witnesses  move  away.  Some  die,  others  for- 
get, and  sentiment  change-.  When  defending,  the 
.Major  seldom  hurries  his  cases  to  trial,  but  generally 
takes  his  time  about  it.  He  is  a  great  student — once  a 
doctor,  this  helps  him  in  dissecting  criminal  cases. 
He  is  strong,  rhetorical  and  very  graphic  in  trials  ;  fer- 
tile in  imagery,  quaint  in  expression,  a  lover  of  ora- 
tory, and  wedded  to  his  profession.  To  try  a  murder 
case  is  to  him  a  positive  luxury.  He  will  follow  the 
details  with  all  the  interest  of  a  discovery,  and  relish 
.the  happy  turns  with  all  the  zeal  of  an  enthusiast. 


310  TRIAL    PRACTICE. 


CHAPTER  XXX. 


THE  MISER'S    HANK. 


Griswold,  once  a  rich  merchant  in  Chicago,  failed1 
from  the  effects  of  the  great  lire,  and  went  to  Mil- 
waukee to  live  on  a  homestead  in  his  wife's  name. 
Returning  one  day  to  Chicago  he  was  arrested  for  the 
alleged  concealing  of  property  from  his  creditors,  tried 
and  released  before  the  county  judge,  and  the  case 
was  appealed  to  be  heard  by  jury. 

The  debt  was  nine  thousand  dollars.  The  trial  was- 
long  and  bitter.  Griswold  was  old,  and  if  condemned 
would  suffer  a  practical  imprisonment  for  life,  as  the 
execution  ran  against  the  body.  Judge  Israel  Holmes,, 
of  Chicago,  defended,  and  after  a  forcible  argument 
on  the  law  and  facts,  concluded  his  address  as  follows  : 

There  is  a  beautiful  tradition  of  a  painting,  well- 
known  in  Venice  ;  the  sketch,  by  a  great  artist,  of  a 
miser's  hand.  It  is  the  story  of  a  poor  young  man 
who  loved  a  rich  young  lady,  the  daughter  of  an  old 
miser.  Because  of  the  young  man's  poverty,  the 
father  refused  to  allow  the  marriage  to  be  comsum- 
mated . 

The  young  people  were  disconsolate  and  in  the  ex- 
treme of  wretchedness.     The'  young  woman  even  at- 

*  Too  rare  to  omit,  although  out  of  its  order. 


THE    MISER'S    IIAXD.  311 

tempted  suicide.  She  was  rescued  by  an  unknown 
friend  who  interceded  for  her  lover  with  the  old  miser 
father.  But  his  words  were  of  no  avail.  Against  all 
entreaty  the  misrr  remained  inflexible.  lie  would 
have  no  family  of  beggars  for  his  children  he  .-aid. 
The  stranger  then  asked:  "If  the  young  man  could 
put  down  six  thousand  pistoles,  would  you  then  permit 
the  marriage?"  The  old  man's  looks  said  yes,  but 
his  word-  expressed  only  scorn  and  ridicule  at  the 
offer.  The  stranger  turned  to  the  table,  took  a  small 
crayon  from  his  pocket,  and  rapidly  sketched  some- 
thing on  a  piece  of  parchment.  He  held  it  up  to  view, 
and  the  old  man  exclaimed  :  '•  It  is  my  hand  .'  It  is  my 
hand!''  And  sure  enough  it  was!  An  open  hand, 
with  hollow  palm,  and  anxious  looking  grasp;  eager 
as  if  expecting  to  catch  a  shower  of  gold.  The  pic- 
ture of  a  miser's  hand  with  all  the  old  man's  nature 
woven  in  the  wrinkles.  The  young  man,  bidden  by 
the  artist,  took  the  sketch  to  the  librarian  of  St.  Mark, 
sold  it  for  the  required £sum ,  and  returned  joyously 
with  the  money,  cast  it  at  the  miser's  feet,  and  the 
young  people  were  married, 'and  were  happy. 

The  stranger  was  Michael  Angelo.  The  sketch  was 
preserved  for  centuries  as  a  wonderful  creation  of 
genius  among  the  treasures  of  Venice,  and  was  finally 
destroyed  in  war,  but  its  memory  will  never  be  lost. 
And  if  some  Michael  Angelo  could  give  us  the  charac- 
ter of  these  plaintiff-,  with  cruel  and  revengeful  hands, 
and  we  could  see  the  life  sketch,  it  would  sell  in  the 
markets  of  men  for  gold  enough  to  ransom  the  old 
merchant's  liberty.  But  without  the  pencil,  or  the 
crayon    sketch,   you  hold  the  power  of  liberty  your- 


312  TRIAL    PRACTICE. 

selves.  Iii  the  name  of  humanity  ;  in  the  name  of 
justice:  in  the  name  of  reason;  stop  this  disgraceful 
chase  for  gold  !  He  has  borne  it  long.  He  is  old.  lie 
is  weary.  Give  him  his  liberty  and  give  him  his  life. 
In  the  course  of  nature  this  husband  and  this  wife 
will  not  journey  long  together.  We  must  all  go  soon  ; 
the  judge  upon  the  bench;  the  youngest  and  the  old- 
est juror,  the  youngest  and  oldest  advocate,  and  the 
prisoner  for  debt  first  of  all  must  go.  He  is  nearing 
the  end  of  life's  short  race  ;  torn  by  troubles,  dis- 
heartened by  care  and  defeat,  there  is  but  a  few  years 
left  in  all  for  him  and  his  trusty  companion  ;  if  you 
separate  this  couple  in  their  old  age,  it  will  be  worse 
than  it  would  have  been  for  the  younger  couple.  It 
will  be  harder  now,  and  may  God  save  her  from  it, 
for  her  days  will  then  indeed  be  few  and  full  of 
trouble.  With  the  husband  in  their  prison,  their  grasp 
will  soon  fasten  on  the  little  she  has  saved  for  her 
own  declining  years,  which  will  go  with  the  ruins  of 
their  home.  The  fire  that  burned  away  their  fortune 
left  their  honor,  and  this  I  place  in  your  keeping ;  un- 
der the  sublime  sanction  of  a  juror's  oath  of  a  jury's 
mercy,  I  ask  you  to  stand  as  an  iron  ivall  around  their 
fireside,  their  liberty,  their  homestead  and  their  honor, 
and  say,  in  spite  of  avarice  and  persecution,  he  is 
"  not  guilty."     GriswTold  was  released. 

THE   MEMORY   LIVES. 

To  all  who  have  helped  me  in  this  work  I  owe  a  debt 
of  thanks.  But  to  one  who  aided  most  of  all,  who 
copied  and  compared,  was  critic,  office-boy  and  friend 


THE    MEMORY    LIVES.  313 

I  owe  the  most,  the  memory  of  "Louie's"  life. 
"  Make  it  of  little  words  that  I  can  understand"  was 
his  advice. 

He  did  not  live  to  understand  it  all.  One  bright 
June  day,  when  nature  was  in  sunshine  after  rain,  the 
seventh  of  his  illness,  he  called  his  mother  to  place 
him  at  the  window  where  he  could  see  the  green  lawn 
and  the  garden,  his  pet  horse  and  dog,  and  take  a  last 
fond  look  of  familiar  objects. 

The  words  lie  Baid  were  full  of  tender  meaning: 
**  you  can  all  live  without  me,  but  I  could  not  live 
without  vou  I"  Brave  words  are  these  for  one  of  six- 
teen summers,  who  had  borne  diptheria  in  his  room 
alone,  from  choice,  and  then  he  fell  asleep,  and  sleeps 
to-day  in  YVoodmere,  on  a  grassy  slope,  shaded  by 
evergreens  and  covered  well  with  flower-.       * 

They  -aid  above  h«s  grave:  "We  live  in  a  world 
of  beauty  and  of  tears.  The  trees  and  flowers  fall 
down  before  their  time,  and  fade  and  wither  in  their 
bloom,  and  so  do  lives.  He  that  has  made  the 
trees,  and  fields,  and  flowers,  controls  them  by  His 
will. 

"All  trees  are  not  alike  —  many  are  more  beautiful 
than  other-  ;  some  more  valuable.  All  flowers  are  not 
of  equal  sweetness  with  the  rest  ;  some  are  sought  for, 
others  left  alone.  All  lives  are  not  alike  :  some  are 
nearer  to  us  than  the  re-t . 

"  So  every  garden  has  its  sweetest  rose,  and  every 
household  has  its  idol  plant.  The  flowers  that  wither 
once,  may  bloom  another  year,  but  friends  departed 
never  come  again.  The  mountain  mists  come  down 
and  go  away,  and  yet  some  part  remains.     The  grass 

(21) 


314  TRIAL    PRACTICE. 

drinks  some,  and  brightens  at  the  taste.  The  leave- 
are  greener  by  the  vapor's  touch.  The  rose  inhales  it, 
and  its  sweetness  grows.  The  wild  flowers  catch  it 
and  hold  it  in  their  fragrance.  The  earth  is  richer 
from  the  rain  and  mist.  Much  of  it  is  folded 
in  the  apple  and  the  peach  to  form  the  fruits  of 
autumn. 

So  with  life  when  taken  at  its  prime,  and  BO  with 
every  noble  life.  Sad  as  it  is  to  be  cut  off  full  of  prom- 
ise and  usefulness,  it  is  not  all  gone  from  us  !  Some 
•of  it  is  woven  in  the  scenes  of  home.  It  has  lived 
there  !  It  has  left  its  mark  upon  our  characters  !  Some 
part  is  folded  in  the  hearts  of  friends,  and  sweetens  all 
their  memories.  Much  is  absorbed  by  associates.  More 
lis  blended  in  the  thoughts  of  those  who  knew  and  loved 
its  mission,  and  all  these  kindred  feelings  bear  it- 
lesson  long  after  it  has  passed  away,  for  "we  are  a 
part  of  all  that  we  have  known." 

"And  then  his  going  was  so  peaceful  and  so  brave. 
As  the  early  evening  shadows  came  nearer,  he  knew 
he  would  not  look  upon  the  morrow,  and  called  his 
mother  to  move  him  where  he  could  see  the  sun,  his 
brother  leading  out  the  horse,  and  take  a  last  farewell 
of  home.     Thus  he  passed  away  so  young.     But  he  is 

not  all  gone  !      He  has  lived  here  !     His  memory  re- 

****** 
mains. 

And    so   in    the  history   of   many   lives.       "What 

shadows  they  are,  and  what  shadows  they  pursue!" 

The  memory  of  the  deeds  they  do,  lives  on  ;  their  lives 

go  out  like  sentinels  relieved,  to  sleep;    lives  grown 

brave  and  useful  in  their  state  that  would  make  others 

'better  by  their  reading. 


THE    MEMORY    LIVES.  315 

It  it  is  not  my  intention  to  particularize,  and  I 
have  mentioned  the  different  trial  lawyers  in  this  vol- 
ume without  a  single  thought  of  partiality,  favoritism 
or  consultation  with  any  one  ;  which  fact  will  appear 
on  a  full  reading  of  the  volume,  where  many  men  not 
singled  out  are  used  to  illustrate  the  value  of  special 
means  employed  in  practice  by  successful  advocates. 
Other  lives  are  used  to  enforce  some  thought. 

There  is  more  than  a  single  lesson  to  be  drawn  from 
these  lives.  They  all  have  their  own  way  and  pursue 
it  ;  that  way  embraces  study,  industry,  art  and  its  ap- 
plication; while  the  most  successful  are  the  best  read, 
in  men,  and  books,  and  having  mastered  themselves 
and  their  profession,  they  prove  to  us  that  "  the  best 
teachers  of  humanity,  are  the  lives  of  great  men." 
That  success  makes  friends,  and  defeat  makes  ene- 
mies. That  the  glory  of  a  lawyer  is  his  strength  of 
character.  His  knowledge  and  acumen  must  be  for- 
ever respected.  It  is  his  lasting  capital.  Fires  never 
burn  it;  slander  cannot  kill  it  :  distance  cannot  destroy 
it;  for  what  he  owns  in  knowledge  is  his,  is  valuable, 
is  lasting. 


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